Incap, earned income, FERS disability

Chowser

New Member
Registered Member
Greetings everyone, I have used this great site throughout my entire VA and MEB process and was always able to find most of the answers to my questions. However, I have yet to find a similar situation to mine and now I am lost on my next step.
In 2012 while serving in the ANG I was diagnosed and rated 70%VA for PTSD. I told my military flight doc who put together my LOD packet which was approved a few months later. He felt I was okay to continue flying for the time being. At the same time I told my civilian doc (Federal Employee who needs medical exam to work) they immediately removed me from performing my duties. I was placed in a administrative job while I went through the VA counseling, CPT, and group therapy. My condition never really improved and I eventually accepted a FERS disability retirement in Dec 2014 since that is where my union and supervisors were forcing me to go. By this time my military doc and I agreed it was time for me to stop flying and enter the MEB process.
In Aug 2015 I went to the formal board and heard from my JAG that I should be on incap pay status since I was unable to work due to my LOD issues. I was originally told at my unit that there was no pay for me since I was already getting my VA check. The more I started researching the topic the more I realized this was false. When I pressed the issue they finally let me apply for Incap in Dec 2015 (one year since I last worked). I was totally honest on the form and told them I receive FERS disability and VA money. They sent me an email the next week saying "sorry but NGB said you are retired and getting retirement checks so you do not qualify for incap".
I began arguing the point that my retirement is considered temporary since I must undergo medical exams to see if I can return to work. I also began arguing that the AFI states to qualify for incap one must show a loss of civilian "earned income". The AFI defines "earned income" as wages and other things but is very specific in stating that it does not include retirement income or other non-taxable government income ie VA money. I have always used the argument that if I didn't have my LOD PTSD then I would be at work and earning income.
Since my unit said NGB was the deciding factor I took my argument directly to NGB A1. They really had no clue who I was or what I was talking about which confirmed my suspicion that my unit POC never talked to them about this.
So here is my situation after 4 months of talking to NGB A1 nobody can tell me yes or no on my eligibility, they all keep stringing me along saying they need to talk to legal or my unit. I am not sure of my next step since I was never officially denied incap. The AFI has an appeal process if you get officially denied but nothing for people like me who were blown off by a person who did not want to process my application or feels I am not entitled.
My retirement is in a month and I am afraid I will loose out on 17 months of incap that I feel I am entitled to. Does anybody have a similar experience? Advice for my next step?
 

Chowser

New Member
Registered Member
My retirement date is 29 May. Does anybody have advice for anything I should do prior to separation? I assume my next step is a BCMR? Is this something I can do on my own or should I seek legal counsel?
 

FloridaInjuredInCombat

PEB Forum Regular Member
PEB Forum Veteran
Registered Member
My retirement date is 29 May. Does anybody have advice for anything I should do prior to separation? I assume my next step is a BCMR? Is this something I can do on my own or should I seek legal counsel?
I was on the Army National Guard side of the house, so it may be somewhat different for the Air National Guard side of the house.

First off, summarily denying you INCAP and/or refusing to submit your INCAP pay request for processing is (from what I've found) fairly common. At least on the Army side of the house this tactic is totally in violation of the regulations (AR 135-381) which state that the ONLY entity within each state that can Approve or Deny an INCAP pay claim is the Incapacitation Review Board (which IAW with AR 135-381 is convened with a panel of Officers, including a rep. from JAG and Medical Corp.). So simply put, some guy at your unit saying "I checked and you don't qualify, and I won't or can't submit your INCAP claim" is total B.S.

In my case, the unit along with the 'helping hands' at the Office of the State Surgeon (OTSS - Florida National Guard) initially refused to process my claim at all, and ORDERED me NOT to seek military medical care (banning me from even speaking with a military doctor about it). I had to resort to filing an Article 138 complaint addressed to the State's Commanding General (which is in some ways a total bluff, since you're only supposed to do that while on Active Duty Title 10 orders, but it put the fear of God into the unit short term).That was enough to at least let me be seen by the military physician who in turn filled out the Military Fitness for Duty Report, which is a key document for INCAP (and must be done every 90 days while you're unable to work or drill - aka qualify for INCAP).

After that the unit and OTSS went back to their tactic of not sending the claim up to the State IRB to be processed. This time I had to file an IG complaint and follow that up with a complaint to my U.S. Senators office. Finally, several months into it, the unit was under enough pressure to send the claim to the State IRB and low and behold I was approved for INCAP. And for the next year it was a running gun battle to keep them from stopping INCAP through the IDES process and my eventual military retirement.

Your case is slightly different, in that you were retired (temporarily) due to the LOD condition. INCAP is supposed to be there to recoup at least in part the wages you could have otherwise had it not been for the LOD condition incapacitating you. I would argue that the temporary retirement severely diminished your income, and at the very least you should qualify for INCAP to recoup the loss. Meaning they pay you INCAP minus the retirement income, keep in mind that INCAP is capped at what you would theoretically make on Active Duty full time in your pay grade (including base, BAH, and BAS).

Making them send the claim up the proper channels so it can be processed (approved or denied, and appealed if needed) is the real hurdle. My best advice is to turn up the heat (Article 138 / IG / Congress). Do at least one of these ASAP, so its on record that they weren't doing their job, and you tried to get them to do their job BEFORE you were out of the military.

Also, while you're still in, gather up EVERYTHING you can (medical records, copies of AKO email traffic, hard copies of your LES's and anything to do with drill attendance, Active Duty time etc...) because they will be much harder to access if not impossible once you're out. My unit was jacked up enough to wait till the last few days prior to my retirement to submit an 'updated' accounting of my drill and AD points sheet, cheating me out of about 120 points (most of which had been on my yearly summary for several years). They refused to copy the 1379 drill records for me to prove their account was in error and now that I'm out I will have to file a FOIA request and still most likely never get the documentation needed to prove they stole that time from me. So copy while you can, and watch them like hawks.

One hurdle you may have is if you didn't get the Military Physician Fitness for Duty Reports done every 90 days for the period in question. You can still overcome this by other medical documents and profiles, but they may be A holes and insist you somehow travel back in time to do what you would have done all along if they would have done their job like the regulation require of them. Such is life, if it becomes a sticking point, you may want to argue that the unit's duties IAW with the regulations is to not only brief you on INCAP at the start of the LOD process, but to help you through the process, including getting the medical fitness for duty reports on a periodic basis. They failed you, if not, you would have complied.

Another key thing to keep in mind, VA disability benefits are NOT taxable and as such are NOT earned income, and any INCAP pay should NOT be offset by them. In plain text, DFAS is not supposed to take money out of INCAP because you're getting VA disability pay. Problem is, at least for the ARNG the regs. state they can, so they do. There is a new DODI 1241.01 published just last month, that finally states the law correctly. Look at page 15, item 4. Jason just posted the DODI on the forums homepage a few days ago, if you need it for future battles.

Once out, the BMCR may be your only route. Until then, at least in the Army regs, you have the RIGHT to submit information directly to the State IRB should the unit / OTSS fail to submit it on your behalf.

Hope this helps...
 
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Chowser

New Member
Registered Member
I will start working this angle asap. I have been concentrating on my unit and NGB POC's, I didn't even know there was a State office I could be dealing with. Thanks for the detailed insight and advice.
 
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