DoDI 1241.01 Reserve Component (RC) LOD Determination for Medical Treatments and INCAP Pay

Discussion in 'Department of Defense Regulations' started by Jason Perry, May 15, 2016.

By Jason Perry on May 15, 2016 at 1:58 AM
  1. Jason Perry

    Jason Perry Benevolent Leader Site Founder Staff Member PEB Forum Veteran Registered Member

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    Jason Perry submitted a new resource:

    DoDI 1241.01 Reserve Component (RC) LOD Determination for Medical Treatments and INCAP Pay - Updated and Re-issued (as DoDI from a DoDD) Regulation on LODs and INCAP Pay Entitlements

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Comments

Discussion in 'Department of Defense Regulations' started by Jason Perry, May 15, 2016.

    1. FloridaInjuredInCombat
      FloridaInjuredInCombat
      Thank you Jason,

      One of the very interesting changes in policy I noticed reading over the new DODI is the recognition that VA benefits are not taxable, and therefore do not meet the standard of earned income, and as such INCAP will not be offset by VA benefits received (page 15, part 4.)

      That should be of great use for anyone appealing the deduction or offset, including myself. Next step is the ABCMR. As for the idea that this policy was not in effect prior to April 2016 when the DODI came out, I plan to show that both the senior legal counsels for the VA and Army stated as much in their published opinions from 2009, and it is not a change in the taxable status of VA benefits but a recognition that the INCAP offset was never IAW the law.
    2. Jason Perry
      Jason Perry
      Yes...while I think this has "always been the law" the recognition and explicit statement is very helpful for claimants!


      As I stated above, I think the regulation should be viewed as a simple statement of the law- as it has always existed. It starts to get complicated when arguing retroactive application of laws and regulations (especially when there is no clear statement about such regulations or laws only being forward looking). There is a concept in case law about "remedial" regulations or laws that I think applies.

      As is very often the case, the only way to get to the bottom of things is to apply for or ask for certain compensation and to argue that they are due. If granted, then great- it is a win. It is when denials are made that it takes fighting things out further.

      Overall, I think this DoDI is very favorable for Servicemembers and (potentially) for Veterans.
    3. FloridaInjuredInCombat
      FloridaInjuredInCombat
      Does anyone happen to know what regulation or law covers the enforcement and/or compliance for services regarding Department of Defense Instructions.

      I ask, because I am forming my request to have the above mentioned DODI 1241.01 complied with by the service (either at the State level, DFAS, or through the ABCMR and CFC if needed).

      In 2009, Army JAG came out with a legal opinion stating that INCAP pay being offset by VA benefits has no statutory [aka. legal] authority. But in the next paragraph states that such an offset is in the regulation (AR 135-381) and implies that following the regs is justification, even if the law doesn't support the action.

      I would like to find something that says in black and white that the Army is required comply with the DODI's, and close the door on them saying "as long as it's in the regs, that's what we do" (waiting years for an updated regulation).

      Any ideas...
    4. RonB
      RonB

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