Reserve and National Guard Incapacitation Pay

My husband is Active duty Army for 7 years, 3 years Reserves and the last 4 years as Georgia Army National Guard. He was injured at his Unit back on 10-4-2009, when a 250 pound tarp was dropped on his neck and shoulder. He is a Medic & was asked if he needed to go to the hospital, he thought he was ok. For the next 3 weeks he had severe headaches (which he had a long history of migraines, so he thought it was normal) On 10-30-09, he had a stroke in the optical area of his brain from a carotid artery dissection (from the tarp hitting him in the neck) and on 11-7-2009, he had a 2nd full on stroke in the communication area of his brain. His Unit is still processing his LOD and is now asking for paystubs from his civilian employer. (he had lost his civilian job as a nurse b/c he now can not read or write.) I supplied them with W-2's and also a letter from the Georgia Department of Labor noting his income but they are insistent on paystubs. I had since shredded them after I filed his taxes.

Is this right?? What else can I do??? I am so frustrated that we are almost a year past his injury and nothing has been done to take care of him.
 
Wow, it's comforting but at the same time not, to see that we're not the only ones dealing with issues over this kind of thing. My husband had a heart attack in early July while in the middle of an interview, he was a recruiter for the National Guard on BA1 status. I just read the info you attached here & the unit did NOT do what they were supposed to. They never even filled out the Line of Duty until the last week or so when the medical folks found out about everything. They sure never mentioned INCAP pay to him!! and the problems he's had getting his command there to sign forms in the past, I am almost certain we're going to have no end of problems just getting a signature on these forms. But you've all been so helpful with the information provided here! He just saw a medical board today at which time all this stuff was mentioned to him, and that was not because his Unit initiated but because the R&R command stepped in.
 
You need to learn all you can about the Army INCAP pay and read the regulations. INCAP Pay is used when the member is unfit to perform military duties OR can show a loss of civilian income--not both. He should not need to provide proof for loss of civilian income. They are trying to apply the wrong criteria.

http://www.dtic.mil/whs/directives/corres/pdf/124102p.pdf


6.2.1.1. Member Unable to Perform Military Duties
6.2.1.1.1. A Reserve component member who is unable to perform
military duties, as determined by the Secretary concerned, due to an injury, illness, or
disease incurred or aggravated in the line of duty is entitled to full pay and allowances,
including all incentive and special pays to which entitled, if otherwise eligible, less any
earned income as provided under 37 U.S.C. 204(g) (reference (c)) and DoD 7000.14-R,
Volume 7A (reference (d)). This has been commonly referred to as incapacitation pay.
DODI 1241.2, May 30, 2001
5
6.2.1.1.2. A member authorized pay and allowances under Section
204(g) of reference (c) shall not be allowed to attend inactive duty training periods or to
acquire retirement points for performing inactive duty training. However, a member may
earn retirement points in order to satisfy the requirements for a qualifying year of service
by completing correspondence courses approved by the Secretary concerned.
6.2.1.2. Member Able to Perform Military Duties
6.2.1.2.1. A Reserve component member who is able to perform
military duties, as determined by the Secretary concerned, but demonstrates a loss of
earned income as a result of an injury, illness, or disease incurred or aggravated in the
line of duty is entitled to pay and allowances, including all incentive and special pay to
which entitled, if otherwise eligible, but not to exceed the amount of the demonstrated
loss of earned income or the amount equal to that specified in subparagraph 6.2.2., below,
whichever is less.

1. IAW DODI 1241.2, pay and allowances will commence within 30 days of the date that the injury, illness, or disease was reported
2. IAW DODI 1241.2, Medical treatment for an injury, illness, or disease incurred or aggravated in the line of duty is not delayed because of administrative requirements


3. IAW DODI 1241.2, Pay and allowances are not terminated due to administrative oversight.
4. IAW DODI 1241.2, That pay should commence not later than 30 days after the illness, injury, or disease was incurred and shall continue without interruption
5. IAW DODI 1241.2 A Reserve component member who is unable to perform military duties, as determined by the Secretary concerned, due to an disease incurred or aggravated in the line of duty is entitled to full pay and allowances


6. IAW DODI 1241.2 The member's entitlement to healthcare and pay and allowances under this Instruction shall terminate on the date that the member is found fit for duty or is separated or retired.

 
I have a question, i am in the national guard in Missouri and my BN XO is dead set on getting me out of the service. He has tried three different ways in the last 18 months and has now succeeded by stalling me on temp profiles so i could not go to any schools even though i was injured on active duty while at flight school and with my surgerys i have been barred from flight and cannot go to any schools while on temp profile. I was on the temp profile for 18 months while at FT Rucker then another 18 months when i was recalled to missouri, and my XO refused to allow me to see the military doc to get a perm profile untill i involved the IG's Office. But anyway i am now on incap due to having to have the first rib on the left side removed because it was pinching off an artory, a blood vessel and a nerve. the sergury was in OCT and now the military doc, that hasn't even seen me, has decided the im fit for military duty and on tier 2 now. My company commander, BN XO and BN CO have stated that as soon as the military doc sees me and decides that im fit for duty then im out, no PEB/MMRB anything. is this legal? I thought i had to be evaluated before you left the military.
 
No, its not legal. There are two issues from what you wrote. 1) Entitlement to military disability retirement pay and 2) entitlement to active duty pay from the period you were dropped off of orders. If you are receiving incap pay now, this would likely halt the further entitlement to pay, but you may well have a claim for back pay.
 
I haven't heard a word about incap pay, told to wait for my LOD paperwork even though DOD inst says pay starts in 30 days. Also My job wants to see orders for me not being back at work due to injury. Since I have no orders they placed me on FMLA, which is wrong based on USERRA section listed below. Has anyone out there used this protection, if so can you share the experience.
THanks




§ 1002.116 Is the time period for reporting back to an employer extended if the employee is hospitalized for, or convalescing from, an illness or injury incurred in, or aggravated during, the performance of service?
Yes. If the employee is hospitalized for, or convalescing from, an illness or injury incurred in, or aggravated during, the performance of service, he or she must report to or submit an application for reemployment to the employer at the end of the period necessary for recovering from the illness or injury. This period may not exceed two years from the date of the completion of service, except that it must be extended by the minimum time necessary to accommodate circumstances beyond the employee's control that make reporting within the period impossible or unreasonable. This period for recuperation and recovery extends the time period for reporting to or submitting an application for reemployment to the employer, and is not applicable following reemployment.
20 C.F.R. 1002.116 (bold question in original).
 
You're right about the 30 days. Unfortunately there is a lack of enforcement and lack of procedures to ensure this instruction is complied with. In my case, it took 7 months before I was placed on active duty orders and paid. After that, my orders were allowed to lapse 6 times resulting in no pay for over 30 days. Complaints to IG and Congressman resulted in a letter back from the military saying, "everything is fine--the member has received all his entitlements." That was not the pint of the complaints. The point was they violated federal law and nothing has yet been done about it--and they still continue to do the same to others. Sorry for the rant--you're not alone in this. I'd suggest you submit the paperwork yourself signed by the doctor for the INCAP and not wait for the LOD. At least by the time the LOD is done, they will have the INCAP ready to go. Couldn't hurt quoting the regs back to them and requesting a written reply. Here are a few:

1. IAW DODI 1241.2, pay and allowances will commence within 30 days of the date that the injury, illness, or disease was reported

2. IAW AFRCI 36-3004, Members on active duty orders for a specified period of 31 days or more are not involuntarily released from their orders

3. IAW AFRCI 36-3004. Orders are normally extended a minimum of 60 days.

4. IAW DODI 1241.2, Medical treatment for an injury, illness, or disease incurred or aggravated in the line of duty is not delayed because of administrative requirements

5. IAW DODI 1241.2, Pay and allowances are not terminated due to administrative oversight.

6. IAW DODI 1241.2, That pay should commence not later than 30 days after the illness, injury, or disease was incurred and shall continue without interruption

7. IAW DODI 1241.1, Reserve component members who have been continued on active duty for medical reasons for more than 30 days are entitled to medical and dental care on the same basis as a member of the regular component.

8. IAW DODI 1241.2 A Reserve component member who is unable to perform military duties, as determined by the Secretary concerned, due to an disease incurred or aggravated in the line of duty is entitled to full pay and allowances

9. IAW DODI 1241.2 The member's entitlement to healthcare and pay and allowances under this Instruction shall terminate on the date that the member is found fit for duty or is separated or retired.

10. IAW AFRC 36-3004, Members undergoing MEB processing are extended no less than 120 days.

11. IAW AFRC 36-3004. To ensure member’s pay is not interrupted, an extension order must be processed no later than 14 days prior to expiration of original order.


Not knowing what branch you're in--sopme of these may not apply to you. Make sure you take the poll below.
 
I just went through the process of having to argue with my employer to be put on military leave rather than FMLA for surgery I needed following an LOD I sustained in Jan 2010. They didn't seem to understand that when you are injured while performing military duties, this extends your military leave under USERRA for up to two years, until you are able to return to work OR you have been rehabilitated as much as you are able to be. I was off work for two and half months following the original injury, went back to work for several months, then needed to be off work again to have surgery on the injured joint. Even though my unit wrote them a letter stating that the surgery was military-authorized treatment for an LOD, they put me on FMLA leave. I finally had to contact the ESGR and Dept of Labor and have them write letters to my employer. Incidentally, I have been off work since Nov 22, 2010, have submitted Nov, Dec, and Jan INCAP packets, and have yet to see a dime, even though I have an approved LOD, I received INCAP for this LOD before, and have provided all the correct documentation.
INCAP looks great on paper, but really sucks for the people who need to use it. We are supposed to focus on recovery and getting ourselves back to being mission capable, but all the while have to try to figure out how we are going to pay our bills while we are unable to work. 30 days is BS. INCAP boards are only required to meet quarterly. So if you submit packets right after they hold a board, it will be at least three months before your packet is seen by the next board. I have learned to always have plenty of savings to cover the me during the times the Army decides to sit on their hands and hold pay. However, if you owe them money, they take it immediately. SO FRUSTRATING
 
I was originally injured 2008, had to have another surgery June 2010 and still waiting on incap! To be followed by ADME, (supposably), for the next surgery! But nice to know they only meet quarterly. They keep promising me 30 days!
 
i was put on cat pay for my surgery i got 94 days of covrage thing might have changed since 2006 it took 30 days to get it when my CSM pushed it with suport of my congresswoman, you right they need to really get on the ball get things strait good luck
 
I have been back from Iraq since May of 2007 and still am waiting for LOD's to be approved. Is this normal? I have paid to go to the doctor out of my pocket logging 8,000 miles in 2009 and have not calculated 2010 yet. I ended up being intebated in November 2010 and after leaving the hospital drove a week later to Mayo clinic in Jacksonville, FL. I have been out of work since December 2010 and just received a phone call Saturday, Feb 5, 2011 about filing Incap. BUT I still don't have approved LOD's even though I have all the medical documentation FROM IRAQ. What do you suggest?
 
Jason please help! I have posted previous on this board in regards to Incap pay. I tried reaching you at [email protected] with no sucess. I am national guard and I have a LOD. I started the MEB in July, I was out of work from Aug. 2010 until Jan 2011. I was told by my Peblo and my unit that I could not be placed on Incap Pay because I am a MDAY soldier, you told me that it was not true but my Unit and my Peblo would not put me on Orders. Is it too late since I went back to work or can I try and get back pay for the time out of work. Someone anyone please help.

Postman56
 
Postman56,

Going back to work should not impact your back due pay.

Please contact me via PM (http://www.pebforum.com/private.php?do=newpm&u=1 ) with your contact information. Not sure why your e-mail would not have made it through, but maybe my spam filter was overactive. I will contact you thereafter.
 
Please help with Incap question!
I am currently on Incap pay for the last 4 months. I tore ligaments in my ankle while on active duty in Iraq. I am an AR NG soldier. My ankle LOD is in the last step and should be finalized very soon. While I am on my Incap I have aggrevated a new injury to my knee. The MRI suggests that I may need surgery on my knee. My knee started swelling up 1 month after my surgery on my ankle (doctors thought infection). my knee has been drained 3 times while on Incap. I feel that I injured my knee due to the weight of the cast causing excess stress on my knee thus injuring it. I cannot get an answer from the medics what is needed to be done next. Will I get a new LOD? The medics think I will not because I am no longer on active duty only Incap which is not orders. Also, this seems to be a new injury and I cannot prove this is directly related to my ankle. Am I able to put this injury on the current LOD? Please help with any info or guidance. I have read the WTU, 12401, 12402 etc. I cannot find any info about a new injury while on Incap.
 
While in INCAP status, you are NOT on duty status and would not qualify for an LOD unless you were performing duty of some sort. While on INCAP you can only be treated for the injuries which occured in the line of duty for which you are receiving INCAP. Unless you have Tricare Reserve Select, you could be liable for other treatment costs. Read the regs on INCAP pay. They are very specific.
 
My board began in July 2009 and this week finally went to the PEB. I lost my civilian job in September 2009 due to my injury and not being able to meet their requirments for employment. My first commander in the Virgina National Guard decided that since I was non-deployable due to my injury, I did not deserve to paid anything and refused to sign the INCAP paper work. Then they decided I couldn't even show up for drill because of the injury but would not ask for INCAP for the lost drill pay either and for the same reason. At that time in 2009, I had fourteen years in the National Guard and had been deployed for seven of those years, and being an Intel asset, six of those years were after September 11th 2001 but even with that information, my commander, who had never been deployed yet, felt that no should be paid if they can't work or deploy with the unit. My unit just deployed a few months ago, so now I have a rear det commander and he is signing the INCAP paper work but so far, two months later it hasn't been submitted yet and in the mean time, I have lost 60lbs becaus I can only afford one meal every three days, I have lost my car, my fiancee (due to the stress of no income, and postponing our wedding three times) has left, my ex-wife is taking my 4 year old son from me, since she has a lawyer and I can't get one to work for free, she will probably win her custody suit next month, my house is being sold next month by my lender and since my credit is destroyed and I hav $0 dollars, I will be homeless next month, so basically, I have lost everything, except for the daily physical pain I feel and the narcotics I need to survive the pain and to stand or get dressed but next month the VA won't even be able to send the drugs so I have that to look forward to but with some luck I might get some INCAP money by then but I doubt it. I am out of energy... the pain (physical and emotional), stress, drugs (the legal ones), I am tired of telling myself, "one more day" I don't want another day anymore... Please pray for my three children, they need and desrve it...
 
Is this saying what I think it is saying?? I am an MDay soldier with the TN ARNG and during my last drill, 05/20/20011, I injured my lower back. I reported it to my unit right away and was taken to the emergency. An LOD was written up and filed. The Dr. put me on meds and gave me light duty... I can not return to my civilian job until I get a "release to return to work" order from a Dr. My question is this; if I can't return to work than does that mean my unit should put me on orders until I am able to return back to work? This is all new to me and I am trying to figure out how I am going to make any money...
Thanks for any help.
 
Lesadam and Sgt Hill

I can feel your pain. To let you know, I am a combat injured OIF Vet. I aggravated that (OIF) LOD injury during a drill weekend. I was placed on INCAP pay for 11 months. I was medically retired in 2010. I was fired from my civilian employment for "job abandonment", while I was undergoing surgeries and treatment for the LOD injury. Active Duty Army 10 years, then 8 years ARNG. I was fired from my civilian career of 10 years as a detective with a sheriffs department. I am involved in a wrongful termination (Federal) USERRA lawsuit.

I too lost everything. My marriage. My dang near paid for home. 2 vehicles, and perhaps the most painful...all my firearms.

These are a few cuts from some of my previous posts. My radar goes nuts when I read a post with implied USERRA violations.

First thought...It bites so bad, but one whom is entitled to INCAP pay must be patient. A real bullet biter when it comes down to being broke...and losing everything. INCAP pay is a slow, slower, slowest of processes. But if one were injured, LOD, one is entitled. LOD is the key!

Read this and read it well. In essence here is the issue. Suppose a troop is injured LOD. Needs surgery, rehab, things like that. Under USERRA that troop has up to 2 years to reapply for his/her civilian employment. To have re-employment rights under USERRA, you must meet the following eligibility criteria:

You must leave a civilian job for the purpose of service, and you must give prior notice to the employer that you are leaving for that purpose.

Your cumulative period of service, relating to that particular civilian employer, must not exceed five years. Certain categories of service are exempt from this five-year limit.

You must be released from active duty under honorable conditions.

You must make a timely application from re-employment after you complete your period of service. In the case of an LOD injury, one has up to two years (recovery, convelesence) to re-apply for his/her position.

A number of things can occur to prompt the termination from civilian employment, but in the end, is it (casually) due to membership in the military? This is the provision and protection an RC troop falls under if injured at drill. I will assume, as most employers, yours does not know this. Per USERRA you up to 2 years convelescense, treatment and therapy time before reapplying for your job. Ensure your employer understands this. If you take the FMLA, it does not really matter, but that time will run out on you at which time your employer will ASSUME they have cause to terminate you. Per USERRA your employer cannot demand any paperwork from you until you reapply and are rehired. Don't worry about them wanting orders, when you reapply they can request any paperwork they want. At this point here is your responsability to the employer. When you leave for a drill weekend you must notify your employer of your military service, make a timely appearance back to work, or if you are injured, let the employer know that you were injured. I invite your attention to www.roa.org (RET) Navy CAPT Sam Wrights Law review Libaray 1.3.2.9 Accommodations for Disabled Veterans.

Lesadam, you state you lost your civilian job due to your LOD injury, was this your decision to resign? Were you terminated? Did the employer attempt to make reasonable accomodations?

Sgt Hill, you state you must have a physician give you a work release before you can return to work. Is that the employers demand? If so is that because you have applied for re-employment? Your employer can only require that you have met the above stated criteria of USERRA when you RE-APPLY for your position. You are not required to present any documentation until you re-apply for your postion, and then the only documentation required is you prove the above stated USERRA criteria.

These are just some very brief points under USERRA. I will be happy to assist more if I can.
 
I am so sorry for your particular situation. This sounds horrible. It is shameful that your civilian job fired you. It makes me so mad that the jobs serving the public are so thoughtless to their employees. Your sheriff's dept should be shamed into doing the right thing. You should expose this in every way you can. Keep up with your USERRA claim. The same thing almost happened to my husband. AFter and LOD and the stress of negotiating any decent care for his back through the limitations of Tricare and Ft. Bragg refusing to give him a medical extension, he tried to go back to work. He had to literally beg the Bham Police Dept to take him back for a desk job, and he had 16 yrs of service and a lifesaving medal, never been written up. They gave in after SOCOM called them, but then found a way to forcibly early retire him through an Alabama law stating you have to be able to pass the fitness test to be a police employee. So, he took early retirement so he would get some sort of pay. Then the MEB found him unfit for any duty, but PEB only gave him 40 percent disability rating. Which is 40 percent of base pay. I want to know what all injured soldiers, especially guard soldiers, can do to change the Law Enforcement community re soldiers rights and what we can do to improve the disability rating process and humanize the PEB board. My husband was told to sign these papers at 40 percent and basically be happy, but he cannot work maybe ever again. How are we supposed to support our family of four now? Good luck to you and keep fighting. Keep up your lawsuit, expose all you can of the corruption of the system.
 
Sunshine,

Law Enforcement agencies are most notorious for their USERRA violations. A detail in your husbands situation suggests to me he may want to look at some of the provisions of USERRA. Particularly the one year without discharge for cause element of USERRA.

There is a reason why law enforcement officers who are in the reserve/guard suffer most of the violations of USERRA. Cops refuse to admit the fact that they have become a VICTIM. These men and women refuse to accept the fact that many times an LOD injury cannot be overcome. They believe in the agency...an agency that is charged with enforceing the law NOT VIOLATING IT!
A law enforcement professional is that...A PROFESSIONAL, they expect their agency to be also. That ir rarely the case.
I cannot put into words the disgust I have for these agencies when I read situations like what you and your husband, and mostly your kids are dealing with. Your husband has given 16 years of DUAL (military) selfless professional service. In the end, after a career such as that one with figure that a job would be easy to come by. THis is not the case. In my case I was fired for cause (job abandonment). I am not entitled to my states unemployment insurance, along with losing my vetrans preferance status regarding any employment in my state. Matter of fact, my states labor law states an employer may decline the application of any vetran who has been fired for cause, and get this...convicted of a felony. WE ARE IN THE SAME CATAGORY AS FELONS!

There is hope. I am enrolled in The VA Voc Rehab. Guys like us just can't go work in a sugar factory. I urge him to at least look into it (VA Voc Rehab). I am 42 and bein back in school is hard on the ego, but I feel a wise decision.

And as far as my situation, I will never give up this fight for all guard/reserve men and women. It will be known that there is a pesky little Fedral Law out there called USERRA. If you screw a troop, a SCREWIN will come.
 
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