RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        6 April 2006
      DOCKET NUMBER:  AR20050007590


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Paul M. Smith                 |     |Chairperson          |
|     |Ms. Carmen Duncan                 |     |Member               |
|     |Ms. Brenda K. Koch                |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests reconsideration of his earlier request that his
debt for overpayment of incapacitation pay be cancelled.

2.  The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant's records be corrected to show that
(1) he did not fraudulently request and obtain unauthorized military pay
and benefits; (2) he did not improperly receive medical care at government
expense; (3) he did not fail to provide evidence that his injury was
aggravated while in a duty status; (4) he did not erroneously receive
incapacitation pay; (5) the Army National Guard (ARNG) properly reimbursed
him and his private insurer for out-of-pocket medical expenses resulting
from the Guard's failure to provide him with timely medical services; and
(6) if he did erroneously receive incapacitation pay, the waiver provisions
of Army Regulation (AR) 37-104-3 should have applied.

2.  Counsel states it took many months and a threat to go to court before
the Guard produced documents that support the applicant's request for
reconsideration.  It appears the applicant's appointed military counsel
never requested any documents from the ARNG, not even those pertaining only
to the Inspector General (IG) investigation, and the Army Board for
Correction of Military Records (ABCMR) did not previously have these
documents.

3.  Counsel states the ABCMR should grant the applicant's request on the
grounds of fairness and justice.  One of the documents produced by the ARNG
admits the applicant's case is "extremely complex in that mistakes were
made by almost everyone associated with the incapacitation process."  The
recently discovered documents call into question the accuracy and fairness
of the Guard's determination of the debt.  These documents also cast grave
doubt on the procedural integrity of the IG investigation that determined
the applicant is indebted to the government.  The ABCMR's decision on the
original application was based on an exceptionally slim and grossly
inadequate record of evidence.

4.  Counsel states the circumstances giving rise to the debt began on 28
May 1990, when the applicant dislocated his shoulder while at home in a
civilian status.  On 10 September 1990, he underwent surgery.  In November
1990, the applicant received active duty orders in support of Operation
Desert Storm.  On   5 December 1990, he was seen by a military doctor and
given a physical profile, which placed him in a non-deployable status.
Despite this status, the applicant's commander ordered him to deploy to
Fort Irwin, CA, and the evidence of record demonstrates his commander
violated his profile by having him perform duties inconsistent with the
profile.

5.  Counsel states that, in response to those orders, the applicant filed a
complaint with the Georgia Army National Guard (GAARNG) IG.  While deployed
to Fort Irwin and performing military duties, the applicant reinjured his
shoulder.  Medical personnel advised he be returned to Fort Stewart, GA for
treatment.  Upon his return to Fort Stewart, the applicant was released
from active duty.  He was denied medical treatment for his injuries at Fort
Stewart, however, and obtained needed civilian medical care in March 1991,
which included additional surgery and physical therapy.

6.  Counsel states an initial line of duty (LOD) determination found the
applicant's injuries were not incurred in the line of duty.  That position
changed on 3 May 1991, when the GAARNG determined they were incurred in the
line of duty.  The applicant received reimbursement for his out-of-pocket
medical expenses and his civilian insurance carrier was reimbursed for
costs expended for his treatment in a civilian facility.  Those payments
were approved by proper National Guard officials.

7.  Counsel states that, on 23 March 1992, the applicant applied to receive
incapacitation pay.  The GAARNG determined he was entitled to
incapacitation pay, and he first received retroactive payments in May 1992.
 The applicant provided the Guard with the required forms, and those forms
documented his loss of civilian income for the period he received
retroactive incapacitation pay.

8.  Counsel states the applicant performed inactive duty training (IDT) on
several occasions during the periods for which he retroactively received
incapacitation pay.  While performing IDT, he observed the physical
profiles limiting his activities and performance of duties.  He continued
to drill in a restricted manner because he needed the income and did not
want to risk separation or other sanctions for unsatisfactory participation
or medical reasons.  The Incapacitation Pay Board that convened on 22 April
1992 approved the pay for the applicant, but also noted, "[u]nit will need
to process DD Form 114 for each month to recoup IDT paid to soldier."  No
such action was ever taken by the applicant's unit.

9.  Counsel states that, by letter dated 1 September 1994, The Adjutant
General, Office of the IG, advised the applicant he was under investigation
for several allegations concerning his injury and incapacitation pay.
Importantly, by email dated 19 October 1994, Mr. G___ advised the
investigator of the provisions of AR 37-104-3, which permit the waiver of
erroneous payments.  There is no evidence in the record that the
investigator ever responded to this notification, and he certainly did not
advise the applicant of this option.

10.  Counsel states that, by letter dated 10 March 1995, the IG advised the
applicant the allegations had been substantiated.  Despite the applicant's
request for legal counsel to assist him with the IG investigation, no
counsel was appointed until 9 August 1995.  Captain M___, the appointed
military counsel, provided meager and ineffective assistance.

11.  Counsel states National Guard records indicate the applicant
improperly received incapacitation pay for the following periods:  28
through 30 July 1990;    1 through 31 August 1990; 1 through 30 September
1990; 1 through 11 October 1991 (sic); 1 through 19 November 1990; 16
through 28 February 1991;              1 through 31 March 1991; 1 through
11 April 1991; 1 through 31 May 1991;        1 through 30 June 1991; and 1
through 31 December 1991.  Guard records show he properly received
incapacitation pay for the period covering June 1992 through June 1993.

12.  Counsel states the IG did not provide any evidence supporting its
conclusion that the applicant fraudulently requested and obtained
incapacitation pay.  The applicant did in fact suffer demonstrated losses
of civilian income during the periods for which he sought incapacitation
pay and demonstrated those losses on the required form.  Captain C___
completed the required Commander's Statement on 10 March 1992, in which he
certified the applicant was disabled for the performance of his normal
military duties for the periods in question.  Because the incapacitation
payments were retroactive and he had already received payment for IDT
performed during those periods with the knowledge and approval of the
Guard, and because his commanding officer endorsed his request, the
applicant could not possibly have committed fraud.

13.  Counsel states the IG's finding that the applicant failed to provide
evidence that his shoulder injury was aggravated while in a duty status was
patently false.  A formal LOD investigation found his injuries were service
connected and aggravated while performing military training.

14.  Counsel states the IG's finding that the applicant improperly received
medical care at government expense ignores several crucial factors.  Fort
Irwin medical personnel directed the applicant to return to Fort Gordon
(sic) for medical treatment.  There, the applicant was denied treatment and
he chose to receive civilian medical care.  AR 135-381 provides that "care
obtained without prior approval from the supporting Army MEDDAC/DENTAC
commander or NGB may require payment by the soldier" (emphasis added by
counsel).  Finally, the Guard accepted the applicant's request for
reimbursement for out-of-pocket medical expenses long after he had received
the medical care.

15.  Counsel states AR 37-104-3, paragraph 60-4(b) states, "on discovery of
an erroneous payment, a responsible person (e.g. personnel officer or FAO)
will issue to the payee (emphasis added by counsel) an official notice of
the right to apply for a waiver under this chapter."  Paragraph 60-5(a)
further provides that "the requirement for a notice of waiver applies only
to U. S. claims for erroneous payment that result from administrative
errors."  The IG may not have advised the applicant of this recourse
because the IG believed the applicant fraudulently requested and obtained
incapacitation pay.  However, in light of the circumstances surrounding the
applicant's request for and receipt of incapacitation pay, no reasonable
person could have concluded the applicant acted fraudulently.

16.  Counsel states AR 37-104-3, paragraph 60-7(b) further states, "All
applications for waiver must show that the applicant – (1) did not know and
could not reasonably have known of the error, or (2) having knowledge of a
probable error, made inquiry to the proper authority and was informed that
payment was correct."  As noted above, the applicant was awarded
retroactive incapacitation pay for periods in which he also performed and
was paid for IDT.  His IDT performance history was a matter of record and
his commander, who endorsed the request, should have had personal knowledge
of that history.  The applicant clearly was of the impression that he was
being compensated strictly for his loss of civilian income.   He acted at
all times in good faith.

17.  Counsel states the National Guard violated the applicant's due process
rights by failing to interview witnesses with relevant information.  The
newly discovered evidence reveals the IG did not conduct a single interview
during the course of the investigation.  The Guard also violated the
applicant's due process rights by failing to include in the Report of
Investigation (ROI) a complete, objective, and impartial presentation of
all pertinent evidence; by failing to obtain a legal review of the ROI; and
by failing to inform the applicant of adverse information prior to
completion of the investigation and giving him a timely opportunity to
refute that information.

18.  Counsel provides 22 exhibits and enclosure A:

      (1)  an undated letter from the Department of the Army Office of the
Inspector General (DAIG) responding to counsel's request under the Freedom
  of Information Act (FOIA); a partially illegible request for IG action
(apparently     a complaint by the applicant that his commander violated
his profile) dated           22 February 1991; an undated IG case history
prepared sometime after            27 January 1992; a DA Form 1559-R
(Inspector General Action Request) dated 22 February 1991; a 14 March 1991
letter from the State of Georgia, Department of Defense, Military Division,
Office of The Adjutant General; a State of Georgia, Department of Defense
fax header sheet dated 12 May 1994; and a 17 August 2004 letter from the
DAIG.

      (2)  the applicant's court case requesting documents under FOIA.

      (3)  a 9 August 1995 letter from the State of Georgia, Department of
Defense, Military Division, Office of The Adjutant General; a 22 August
1995 letter from the State of Georgia, Department of Defense, Military
Division, Office of The Adjutant General; and a 23 September 1995 letter
from the applicant to the Office of the State [of Georgia] IG.

      (4)  a 12 November 1998 letter from the applicant's appointed
counsel.

      (5)  a letter to the applicant's current counsel (date mostly
illegible) from the DAIG; an 8 September 1995 letter from the State of
Georgia IG to the applicant; a 15 January 1992 letter from the State of
Georgia IG to the applicant; a 10 March 1995 letter from the State of
Georgia IG to the applicant; a               28 September 1995 letter from
the State of Georgia IG to the applicant; a          23 August 1995
memorandum, apparently an internal State of Georgia IG approval of the ROI;
and apparently extracts from the IG ROI.

      (6)  an undated, unaddressed, unsigned note, regarding a 24 January
1995 correspondence by the applicant to the note's recipient.

      (7)  an undated, unaddressed, unsigned note headed, "Failures of the
System."

      (8)  an operative note from Redmond Regional Medical Center dated
  10 September 1990.

      (9)  the applicant's DD Form 214 (Certificate of Release or Discharge
from Active Duty) for the period ending 15 February 1991.

      (10)  a DA Form 3349 (Physical Profile) dated 2 January 1991; a
Patient Discharge Note/Plan, date of discharge 7 February 1991; an
Inpatient Treatment Record Cover Sheet, date of disposition 7 February
1991; a memorandum dated  8 February 1991; a Narrative Summary (Clinical
Resume) dated 6 February 1991; and separation from active duty orders dated
13 February 1991.

      (11)  a 29 March 1995 letter from Harbin Clinic.
      (12)  a DD Form 261 (Report of Investigation Line of Duty and
Misconduct Status) dated 3 May 1991.

      (13)  a 24 May 1991 letter from the State of Georgia, Department of
Defense, Military Division, Office of The Adjutant General.

      (14)  an extract from the AR 15-6 investigation, including Georgia
National Guard Form 0184-R (Commander's Approval/Statement of Continuation
Incapacitation Pay), multiple Georgia National Guard Forms 018-R (Soldier
Claim for Incapacitation Pay), and multiple Georgia National Guard Forms
0182-R (Employer's Statement Verifying Earnings).

      (15)  a 20 October 1992 letter from the State of Georgia, Department
of Defense, Military Division, Office of The Adjutant General.

      (16)  a 20 March 1992 letter from Company A, 1st Battalion, 108th
Armor, GAARNG.

      (17)  the applicant's PEB proceedings.

      (18)  a 22 April 1992 letter from the State of Georgia, Department of
Defense, Military Division, Office of The Adjutant General.

      (19)  a 1 September 1994 letter from the State of Georgia, Department
of Defense, Military Division, Office of The Adjutant General.

      (20)  a 19 October 1994 email.

      (21)  a 10 March 1995 letter from the State of Georgia, Department of
Defense, Military Division, Office of The Adjutant General, IG to the
applicant.

      (22)  an Incap[acitation] Payment Summary.

      (Enclosure A) various records of conversations, worksheets, and
memorandums for record.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records that were
summarized in the previous consideration of the applicant's case by the
ABCMR in Docket Number AC97-06823/AR1999015931 on 17 February 1999.

2.  The applicant’s military records are not available to the Board.  This
case is being considered using reconstructed records, which primarily
consist of the documents provided by the applicant.

3.  The applicant enlisted in the ARNG on an unknown date.  He was promoted
to Staff Sergeant, E-6 on 1 December 1987, apparently in military
occupational specialty (MOS) 19K (M1 Armor Crewman).

4.  On 10 September 1990, the applicant underwent repair of injuries
resulting from a left shoulder dislocation that occurred in May 1990 while
in a civilian status and that was apparently aggravated in July 1990 while
in a duty status.

5.  On 30 November 1990, the applicant was ordered to active duty in
support of Operations Desert Shield/Desert Storm.  He was apparently
mobilized at Fort Stewart, GA and transferred to Fort Irwin, CA.

6.  On 2 January 1991, while at Fort Irwin, the applicant was given a
permanent   P3 physical profile due to a post operative left shoulder with
residual instability.  He was given assignment limitations of no physical
training, not to take the Army Physical Fitness Test, no overhead work,
recommended MOS change, nondeployable in present MOS, no running more than
1 mile – at own pace and distance.

7.  On 5 February 1991, the applicant was hospitalized at Fort Irwin for
treatment of a recurrent dislocation of the left shoulder.

8.  The applicant provided a Narrative Summary (Clinical Resume), dated
       6 February 1991, that stated in part, "The patient is being
transferred as an outpatient back to Fort Stewart for further evaluation
and care.  The patient was instructed to follow-up at Fort Stewart with
Physical Therapy Service.  Consult had been written."

9.  By memorandum dated 8 February 1991, the Medical Activity Commander at
Fort Irwin indicated that the applicant was nondeployable and that his
shoulder condition began before mobilization and had been aggravated by
mobilization.

10.  Fort Stewart, GA orders dated 13 February 1991 released the applicant
from active duty.  On 15 February 1991, the applicant was released from
active duty upon the completion of his required active duty.

11.  A DD Form 261 dated 3 May 1991 indicated the applicant had re-injured
his left shoulder on 9 July 1990 lifting a .50 caliber machine gun while on
IDT at Fort Irwin, CA.
12.  By letter dated 24 May 1991, The Adjutant General, State of Georgia,
informed the applicant's Senator that the applicant had obtained the
required surgery from his civilian doctor.  A formal line of duty was
initiated.  If the line of duty were approved, the applicant's remaining
bills would be forwarded to the National Guard Bureau (NGB) for
authorization of payment.

13.  On 5 June 1991, the NGB approved the finding of In Line of Duty, EPTS
(existed prior to service), Aggravation.

14.  The applicant provided an undated IG case history (apparently not
related to the 1994/1995 IG investigation), prepared sometime after 27
January 1992.  This document states in part, "(The applicant's) packet is
unusually complex due to his civilian income.  His income is above average
and is not on a regular cycle, as is normal in commission sales positions.
Incapacitation packets at that time were very tedious and complex.  His
unusual income stream did not help the income verification aspect of
processing."

15.  By memorandum dated 20 March 1992, the applicant's unit forwarded a
request for NGB approval of incapacitation pay for the applicant for the
periods 28 July 1990 through 29 November 1990 and 16 February 1991 through
11 April 1991.

16.  On 16 April 1992, the GAARNG Incapacitation Pay Board approved
incapacitation pay for the applicant for the period 28 July 1990 through
          29 November 1990 and 16 February 1991 through 11 April 1991.  The
board noted his unit would need to process a DD Form 114 for each month to
recoup IDT paid to the applicant.  If results of his evaluation on 23 April
1992 indicated he was still incapacitated, then a packet requesting
approval beyond six months could be submitted to NGB.  Medical bills would
be forwarded to NGB for determination.  A copy of the board's results were
forwarded to each major command.

17.  On 3 September 1992, a PEB found the applicant unfit for duty by
reason of left shoulder pain, EPTS, not permanently aggravated by service,
and recommended he be separated without benefits.  On 8 October 1992, the
applicant did not concur and demanded a formal hearing.  No further PEB
proceedings are available.

18.  A Georgia National Guard Form 0184-R (Commander's Approval/Statement
of Continuation Incapacitation Pay) dated 24 July 1993 shows the
applicant's commander approved continuation of incapacitation pay for the
period 12 April through 31 December 1991.  With this form, the applicant
provided:

      Georgia National Guard Forms 0180-R (Soldier Claim for Incapacitation
Pay) for the months April through December 1991, certifying how much
civilian income he lost during the period/how much he received for a
portion of the month he worked/how much he received from an income
protection plan; and

      Georgia National Guard Forms 0182-R (Employer's Statement Verifying
Earnings) for the months April through December 1991, verifying how much
income the applicant lost during the period/whether night differential,
commissions, or tips were included in the lost income figure/how much he
received from an income protection plan.

      For example, the Georgia National Guard Form 0182-R for the period
    1 through 31 May 1991 verified the applicant was unable to work and
lost $1982.00 in gross compensation from the company.  It also specified a
night differential, commissions, or tips of $2866 was included in the
amount.

19.  By memorandum dated 20 October 1992, the State of Georgia, Department
of Defense, Office of The Adjutant General forwarded a request for
incapacitation (inactive duty (IDT)) pay for the applicant beyond six
months (for the period          1 July 1992 through the completion of the
PEB) to NGB.

20.  By memorandum dated 1 September 1994, the State of Georgia, Department
of Defense, Office of The Adjutant General informed the applicant that the
State IG had been tasked to investigate the following allegations against
him:

      a.  failure to report overpayment of funds for periods of IDT for
which he was paid, when he was paid incapacitation pay for the same period,
in violation of AR 135-381, paragraph 4-9a;

      b.  failure to provide clear and convincing evidence that his injury
was aggravated in a duty status, which is required to qualify a Soldier for
government provided or funded medical care, in violation of AR 135-381,
paragraphs 2-17a and 2-17b;

      c.  failure to secure a military medical authority's determination of
inability to perform normal military duties, in violation of AR 135-381,
paragraph 4-2e (sic);

      d.  failure to provide copies of Federal Income Tax forms and
supporting documents for each period of requested incapacitation pay, in
violation of AR 135-381, paragraph 4-2e;

      e.  failure to demonstrate a loss of nonmilitary compensation as a
result of unauthorized elective medical treatment, in violation of AR 135-
381, paragraph    4-6c(5); and

      f.  failure to properly initiate medical care in a civilian facility
by not obtaining authorization through NGB channels, in violation of NGB
Pamphlet    37-5, paragraph 3-4a(3).

21.  The applicant provided an undated, unaddressed, unsigned note, in a
response to a 24 January 1995 correspondence from the applicant to the
recipient of the note, who was an unknown person.  This note stated, in
part, that the investigation did not substantiate the allegation that the
applicant's commander repeatedly violated the applicant's profile.  "In
fact, [the commander] reassigned (the applicant) out of his primary
military occupational specialty so that he would not be put in a position
to violate his profile."  The note also stated, in part, "The (applicant's)
case is extremely complex in that mistakes were made by almost everyone
associated with the incapacitation system."

22.  The applicant provided an undated, unaddressed, unsigned note headed,
"Failures of the System."  This note stated the company commander failed to
provide periodic briefings on [incapacitation pay] entitlements; failed to
initiate an LOD investigation [on the applicant] within 48 hours of the
incident; failed to counsel [the applicant] on his benefits, rights,
privileges, and responsibilities; failed to provide written input to the
appropriate headquarters concerning [the applicant's] inability to perform
his or her military duties; failed to discourage [the applicant] from
participating in IDT [while] incapacitated; and failed to follow through to
ensure a timely disposition (rest illegible).

23.  The applicant provided an undated document, apparently from the AR
  15-6 investigation, entitled, "Review of Incapacitation Case – (the
applicant)."  In four places, the document noted the applicant performed
light duty (on 19 August 1990, 12 through 14 October 1990, 3 through 4
November 1990, 2 through          3 March 1991, and 6 through 7 April 1991)
while receiving incapacitation pay.  The document stated it appeared the
applicant's earned income greatly exceeded his military pay, so the only
incapacitation pay he should have received would have been drill pay for
any IDT he was not able to perform.  It stated the applicant continued to
work selling insurance and was paid by his employer during the period 16
February 1991 to 31 May 1992 (and noted he earned $46,623.79 during 1990;
$37,908.33 during 1991; $51,747.04 during 1992; and $38,225.38 during
1993).

24.  By State of Georgia IG letter dated 10 March 1995, the IG informed the
applicant they had completed an investigation into allegations against him.
 The results of the allegations were as follows:

      a.  the allegation he failed to provide evidence that his injury was
aggravated while in a duty status was substantiated;

      b.  the allegation he received incapacitation pay he was not entitled
to, in violation of AR 135-381, was substantiated;

      c.  the allegation he improperly received medical care at government
expense, in violation of section 1074, Title 10, U. S. Code and AR 135-381,
was substantiated.

25.  The 10 March 1995 letter listed a fourth allegation, that the
applicant fraudulently requested payment of incapacitation funds from the
government and received those funds, thereby violating the Georgia Code of
Military Justice,     38-2-551; however, the letter did not indicate
whether this allegation was substantiated or unsubstantiated.

26.  The applicant was further informed recoupment actions would begin on
all incapacitation payments improperly received.  Due to the complexity of
his case, the IG recommended the applicant set up an appointment with Major
C___ to be briefed on the facts.

27.  By State of Georgia, Department of Defense, Office of The Adjutant
General memorandum dated 9 August 1995, Captain M___ was appointed to
assist the applicant regarding an action instituted to recover erroneous
payments from him.

28.  By State of Georgia IG letter dated 8 September 1995, the IG directed
the applicant to "complete the actions specified in your 1 Sep 94
notification memorandum.  You will (emphasis in the original) forward, as
required by AR 135-381, paragraph 4-2e, copies for Federal income tax forms
for 1990, 1991 and 1992…."

29.  By letter dated 23 September 1995, the applicant responded by stating
he was "not self employed or a seasonal worker (emphasis in the
original).…"

30.  By State of Georgia IG letter dated 28 September 1995, the IG informed
the applicant they had received his 23 September 1995 letter but, again, he
failed to follow their instructions and the requirements of AR 135-381,
paragraph 4-2e to provide his Federal Income Tax forms.

31.  AR 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 (RC) Soldiers.

32.  AR 135-381, paragraph 4-9a states errors or overpayments will be
recouped from a Soldier's pay.  Paragraphs 2-17a and 2-17b state injury,
illness, or disease manifesting itself after completion of duty or travel
status does not qualify a Soldier for Government provided or funded medical
care.  An exception may be made if there is clear and convincing evidence
the injury, illness, or disease was incurred or aggravated in a duty or
travel status and providing the Soldier otherwise qualifies.  The burden of
proof will rest with the Soldier.

33.  AR 135-381, paragraph 2-6h states non-emergency care by civilian
health care providers is not authorized, unless prior approval is obtained
from NGB for ARNG Soldiers.  Approval must be obtained in writing.  Care
obtained without prior approval from the NGB may require payment by the
Soldier.

34.  AR 135-381, paragraph 3-2 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.
Paragraph 3-2 states a finding that the injury, illness, or disease was
incurred or aggravated in the line of duty is mandatory to qualify for
benefits.  Paragraph 3-5 states RC Soldiers who are disabled from injury,
illness, or disease while on active duty orders for more than 30
consecutive days are eligible for the same disability benefits as their
Active Army counterparts.

35.  AR 135-381, paragraph 4-1e states prerequisites for entitlement to
incapacitation 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.  (IDT pay is
considered to be military income.)

36.  AR 135-381, paragraph 4-1g states 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.

37.  AR 135-381, paragraph 4-2a states determination of inability to
perform normal military duties will be made by the military medical
authority (servicing medical treatment facility (MTF)).  Paragraph 4-2b
states demonstration of lost nonmilitary income will be provided by the
Soldier as indicated by his or her employer(s) on company or Government
agency letterhead and certified by an official of the company or Government
agency.  Paragraph 4-2e states Soldiers who are self-employed or have
seasonal income will support their claim by submitting copies of their last
Federal income tax form and supporting documentation filed with the
Internal Revenue Service, together with any claims made with or benefits
paid by any income protection plan.

38.  AR 135-381, paragraph 4-6c(5) states pay and allowances will not be
authorized for Soldiers who demonstrate a loss of nonmilitary compensation
as a result of an unauthorized elective medical, surgical, or dental
treatment.

39.  Department of Defense Directive (DODD) 1241.1 (Reserve Components
Incapacitation Benefits), the version in effect at the time (dated 3
December 1992), paragraph D1 stated the objective of the Reserve
incapacitation benefit system was to compensate, to the extent permitted by
law, members of the RC who experienced incapacitation or loss of civilian
earnings as a result of an injury, illness, or disease incurred or
aggravated in LOD and provided the required medical and dental care was
associated with the incapacitation.

40.  DODD 1241.1, the version in effect at the time, paragraph D2c stated
members authorized incapacitation pay would not be allowed to attend IDT or
to acquire retirement points for drills.  Paragraph D3a stated members
unable to perform full military duties due to incapacitation under the
circumstances described in subsection D1 were entitled to full pay and
allowances, less any civilian earned income (for the same period as
incapacitation pay is received).

41.  AR 37-104-3 (Military Pay and Allowances Procedures Joint Uniform
Military Pay System (JUMPS-Army)), in effect at the time, stated a request
for waiver of indebtedness made under the provisions of chapter 7,
Department of Defense Pay Manual (DODPM) would be in the form of a letter,
signed by the member.

42.  The DODPM, chapter 7, paragraph 70721 stated an enlisted member on
active duty could apply for remission of the enlisted member's indebtedness
to the United States.  Remission action did not apply in the case of RC
personnel performing IDT or active duty for training with two exceptions
(pertaining to certain ARNG enlisted members in reports of survey cases and
certain U. S. Air Force officers and enlisted members).

DISCUSSION AND CONCLUSIONS:

1.  AR 37-104-3 deferred to the DODPM, chapter 7, paragraph 70721, which
stated an enlisted member on active duty could apply for remission of the
enlisted member's indebtedness to the United States.  However, remission
action did not apply in the case of RC personnel performing IDT or active
duty for training with two exceptions.  The applicant did not fall within
either of those exceptions (pertaining to certain ARNG enlisted members in
reports of survey cases and certain U. S. Air Force officers and enlisted
members).  It appears the IG may not have advised the applicant of this
recourse because the regulation in fact did not apply in his case.

2.  DODD 1241.1, the version in effect at the time, paragraph D2c stated
members authorized incapacitation pay would not be allowed to attend IDT
    or to acquire retirement points for drills.  When the GAARNG
Incapacitation Pay Board approved incapacitation pay for the applicant on
16 April 1992, it noted his unit would need to process a DD Form 114 for
each month to recoup IDT paid to the applicant.  Counsel noted the
applicant performed IDT in a restricted manner on several occasions during
the periods for which he retroactively received incapacitation pay "because
he needed the income and did not want to risk separation or other sanctions
for unsatisfactory participation or medical reasons."
3.  Even though the applicant's unit never took action to recoup the IDT
paid to the applicant as directed by the Incapacitation Pay Board, common
sense should have told the applicant, a noncommissioned officer, that he
could not be compensated twice for the same period.  It does not appear the
applicant received this duplicate payment fraudulently; there is evidence
of record to show his unit did not understand or follow regulatory
guidance.  However, by retaining that IDT pay, the applicant in effect was
paid IDT pay PLUS the same monthly pay and allowances as was provided
members of the Active Army with corresponding grade, length of service,
marital status, and number of dependents for each period he received
incapacitation pay.

4.  Counsel's other arguments have some merit.

5.  The IG had found the applicant failed to provide evidence that his
injury was aggravated while in a duty status; received incapacitation pay
he was not entitled to, in violation of AR 135-381; and improperly received
medical care at government expense, in violation of section 1074, Title 10,
U. S. Code and AR 135-381.  A fourth listed allegation, that the applicant
fraudulently requested payment of incapacitation funds from the government
and received those funds, was not identified as either substantiated or
unsubstantiated.

6.  The Board finds it difficult to understand the IG's finding that the
applicant failed to provide evidence to show his injury was aggravated
while in a duty status.  The applicant initially injured his shoulder in
May 1990 while in a civilian status.  He re-injured his shoulder in July
1990 while in a duty status.  On             2 January 1991, while on
active duty, he was given a permanent P3 profile due to a post operative
left shoulder with residual instability.  Although not a line of duty
determination, by memorandum dated 8 February 1991 the Medical Activity
Commander at Fort Irwin indicated the applicant's shoulder condition was
aggravated by mobilization.  It took a while (and despite the finding of
the September 1992 PEB) but, on 5 June 1991, NGB approved the finding of In
Line of Duty, EPTS, Aggravation.

7.  Administrative regularity is presumed.  If the NGB approved his line of
duty determination, the Board presumes NGB was sufficiently convinced the
applicant had provided enough evidence to show his injury was aggravated
while in a duty status.

8.  The IG found the applicant received incapacitation pay he was not
entitled to, in violation of AR 135-381.  This is true as far as receiving
both IDT pay and incapacitation pay is concerned.  However, it appears the
IG found the applicant also was not entitled to incapacitation pay he
received as the result of loss of nonmilitary income.

9.  One of the IG's initial allegations was that the applicant failed to
provide copies of Federal income tax forms and supporting documents for
each period of requested incapacitation pay, in violation of AR 135-381,
paragraph 4-2e.  As late as September 1995, the IG was still directing the
applicant to forward, "as required by AR 135-381, paragraph 4-2e, copies
for Federal income tax forms for 1990, 1991 and 1992…."

10.  However, the applicant was NOT required to provide copies of his
Federal income tax returns with his request for incapacitation pay.  AR 135-
381, paragraph 4-2e clearly applies only to Soldiers who are self-employed
or have seasonal income.  The applicant was not self-employed and did not
have seasonal income.  He was an insurance agent employed by a company that
sold insurance.  Paragraph 4-2b, which stated demonstration of lost
nonmilitary income will be provided by the Soldier as indicated by his or
her employer(s) on company letterhead and certified by an official of the
company, applied in his case and was the applicable regulatory cite.

11.  It appears the GAARNG provided its own document, a Georgia National
Guard Form 0182-R, in lieu of company letterhead.  The applicant provided
such forms (at least for the months April through December 1991, and
presumably also provided such forms for the other periods of requested
incapacitation pay) in support of his application for incapacitation pay.

12.  The issue to be considered was not the applicant's total annual
income.  DODD 1241.1 stated members unable to perform full military duties
due to incapacitation under the circumstances described in subsection D1
were entitled to full pay and allowances, less any civilian earned income
for the same period as incapacitation pay is received (emphasis added).

13.  As one undated IG case history noted, the applicant's incapacitation
pay packet was unusually complex due to his civilian income.  His income
was above average and was not on a regular cycle.  His unusual income
stream did not help the income verification aspect of processing.
Nevertheless, administrative regularity is again presumed.  If the GAARNG
Incapacitation Pay Board approved incapacitation pay for the applicant for
the period 28 July 1990 through 29 November 1990 and 16 February 1991
through 11 April 1991 (and presumably either the GAARNG Incapacitation Pay
Board or NGB approved continuation of incapacitation pay), the Board
further presumes those agencies were sufficiently convinced the applicant
had provided enough evidence from his employer, in accordance with the
governing provision of the regulation, to show he suffered a loss of
nonmilitary income.

14.  The IG found the applicant improperly received medical care at
government expense, in violation of section 1074, Title 10, U. S. Code and
AR 135-381.

15.  As counsel noted, AR 135-381, paragraph 2-6h states non-emergency care
by civilian health care providers is not authorized, unless prior approval
in writing is obtained from NGB for ARNG Soldiers.  Care obtained without
prior approval from the NGB may require payment by the Soldier.

16.  By letter dated 24 May 1991, The Adjutant General, State of Georgia,
informed the applicant's Senator that the applicant had obtained the
required surgery from his civilian doctor and if the line of duty was
approved, the applicant's remaining bills would be forwarded to the NGB for
authorization of payment.  Counsel stated the applicant received
reimbursement for his out-of-pocket medical expenses and his civilian
insurance carrier was reimbursed for costs expended for his treatment in a
civilian facility.

17.  Once again, administrative regularity is presumed.  If NGB approved
payment of the applicant's civilian medical costs, the Board presumes NGB
was sufficiently convinced such civilian medical treatment was warranted.

18.  Even considering the complexity of the applicant's civilian pay
situation, given the presumption of administrative regularity, any
reasonable doubt concerning the calculation of incapacitation pay in regard
to the applicant's loss of civilian income should be resolved in favor of
the applicant.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__pms__  __cd____  __bkk___  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant amendment of the ABCMR’s decision in Docket Number AC97-
06823/AR1999015931, dated 17 February 1999.  As a result, the Board
recommends that the state Army National Guard records and all Department of
the Army records of the individual concerned be corrected by:

     a.  showing the State of Georgia Inspector General made its three
substantiated findings against the applicant based upon partially erroneous
applications of the governing regulation;

     b.  showing that only that portion of his debt for overpayment of
incapacitation pay related to overlapping IDT pay/incapacitation pay was
valid based upon the above correction (i.e., he should only refund IDT pay
for the periods he received both IDT pay and incapacitation pay); and

     c.  recalculating the applicant's debt based upon both the above
corrections.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
canceling that portion of his debt related to payment of IDT for the
periods he also received incapacitation pay.




                                  __Paul M. Smith________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050007590                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060410                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |128.14                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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