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First and foremost, learn the regs for yourself, as knowing them is the best ammunition you have to a just outcome. Specifically look at DA PAM 135-381 which is backed up by AR 135-381.Thanks Army_PSYOP_1SG
I was active duty for one tour then joined the guard 10yrs total service. I was involved in a car accident in December on my way home from drill. It was found to be ILOD. I saw a Doctor on base who told me not to return to drill until my civilian doctors ok it. I have been diagnosed with post concussion syndrome and am still dealing with frequent headaches and other neurological problems. My civilian (and VA) doctors have told me not to return to work.
Before the accident I knew nothing about LOD or INCAP in fact it was the med group who eventually told me I qualified for INCAP sometime in late April. Since then I have been told by the INCAP rep (a SSgt) that I am not eligible because I was unemployed (full time student) at the time of the accident. At that point I started reading regs and asking my supervisor and finance why I am not eligible. After that they have redacted their statement about me not being eligible but have told me I only qualify for missed drill pay. (When I am cleared to come back I will need to make up those days anyways without pay for retirement points).
They want me to fill out an unemployment statement now that says I was not working and I have not lost any wages since the accident.
The way I interpret the regs that I have read is that I should be entitled to "full pay and entitlements" since the accident. I have over 15k on my credit cards and don't know when I will be able to return to work at this point. I have had absolutely no income since the accident. I spoke to JAG on base who told me they represent the commanders and don't have time to look into all of the INCAP regs for me. He did say he asked around on base and "it comes down to the budget".
So right now I have two major questions:
1. Do I qualify for Incap if I was unemployed at the time of the accident?
2. Do I only qualify for missed drill pay? (have not been able to work any other jobs or create income since the accident)
Keep in mind it is now June and the only official paperwork I know of that has been generated is the ILOD determination. I have been told INCAP pay will happen once the paperwork makes it to the wing CC's desk. I never thought I would be out of work this long so I figured I would be ok financially on my own, now I realize that isn't the case.
Thank you for your help in this matter. If you think it would be appropriate to move this question to another thread than I am willing to do so I just didn't know where to start and I didn't want to hijack someone else's post.
First and foremost, learn the regs for yourself, as knowing them is the best ammunition you have to a just outcome. Specifically look at DA PAM 135-381 which is backed up by AR 135-381.
If you are not allowed to attend drill (not fit for military duty) due to your LOD injury YOU QUALIFY for Tier 1 INCAP pay, which is FULL PAY and BENEFITS just as if you were on Active Duty (30 days a month), that includes BAS and BAH.
If you are able to drill, but unable to work in your civilian job, that would qualify you for Tier 2 INCAP pay, which is whatever wages you lost up to the level of pay you would receive under Tier 1.
Being a full time student or unemployed would affect you if you could still go to drill, as you'd have to prove lost wages. BUT if you're unable to attend drill (and this is decided by DA FORM 7574-1, the Military Physicians report of Fitness for Duty) then YOU'RE QUALIFIED for Tier 1 Pay regardless of your civilian income.
DO NOT SIGN ANY "Unemployment Statement", especially if its some bogus thing generated by the unit, as it smacks of an end run to cheat you out of benefits. Instead download the DA PAM 135-381, read it THOROUGHLY and then print out and highlight what it takes to qualify for Tier 1 (being Unfit for Military Duty). That along with your signed DA FORM 7574-1's (have to have one for each 90 day period) should more than enough to qualify for INCAP.
As for the statement "it comes down to budget", NO, NO and HELL NO! It comes down to the Guard's RESPONSIBILITY to COVER DOWN for INCAPACITATED SOLDIERS INJURED IN THE LINE OF DUTY.
Hope this helps... let me know if they hang you up on something else or drag their feet.
Thanks for the quick reply. First off, I have read the regs over and over, the issue seems to be the "pay and benefits" terminology, nowhere does it explicitly say full active duty pay.
As far as the unemployment statement goes apparently my unit requires it and they are not willing to submit my request for incap until I fill it out. Can you explain what you mean by "it smacks of an end run to cheat you out of benefits" at this point I do not know why it is required but if I do not sign it it will just delay this process even longer.
Thanks for the FYI.@FloridaInjuredInCombat ,
We have to keep in mind that he is in the Air Force Reserves. The documentation and processing is different than the Army. The Air Force Incap reg is AFI 36-2910. So AR 185-381 and DA PAM 185-381 does not apply to him. But DODI 1241.01 applies to all service members in all components. So he would not be able to reference either of those.