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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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
    5. ecs35395
      ecs35395

      According to an article abstract from the publication Military Medicine (refer to Volume 181 Issue 8, August 2016, pp. 777-785, http://dx.doi.org/10.7205/MILMED-D-15-00260), "In 2010, the U.S. Congress directed the Department of Defense to establish the Recovering Warrior Task Force (RWTF) to examine the effectiveness of, and recommend improvements to, military programs and policies for the care, management, and transition of wounded, ill, and injured personnel. To meet its comprehensive mandate, RWTF gathered extensive primary and secondary data that, in combination with RWTF members' relevant experience and expertise, informed and substantiated the recommendations that RWTF published each year. With the 2014 sunset of the Task Force, the authors, who provided research support to RWTF throughout its tenure, sought to systematically summarize RWTF's overall impressions regarding the shortfalls in the RW program and policy arena by analyzing the 87 recommendations that these shortfalls motivated." While I have not yet purchased access to this article, I have previously reviewed the four annual reports published by the RWTF which specifically addressed the longstanding improper application of DoD Directives and Instructions as they directly relate to these still unresolved RC LOD/INCAP/IDES issues.


      Accordingly, Recommendations 21 and 22 of the second RWTF Annual Report (dated August 31, 2012, pp. 26-29, http://rwtf.defense.gov/Portals/22/Documents/Reports/fy2012report.pdf) clearly outlined how the Services were made aware of such concerns while subsequent FY2013 Business Meetings concurred and stated the following on April 5, 2013 (p. 11): DoDI 1241.2, “Reserve Component Incapacitation System Management”, May 30, 2001, and DoDI 1241.1, “Reserve Component Medical Care and Incapacitation Pay for Line of Duty Conditions”, February 28, 2004 (certified current as of April 23, 2007), will be consolidated into a single issuance. Reserve Component (RC) members with line of duty injuries or illnesses to be retained on active orders until the member is fit for duty, or the condition cannot be materially improved with continued treatment and the member has received a final disposition from the DES. (http://rwtf.defense.gov/Portals/22/Documents/Meetings/m14/101wcp.pdf).


      Given this context--along with continued RWTF annual recommendations on this subject matter through 2014, several media reports and IG investigations continuing to highlight that these systemic problems have persisted since at least 2005 and still remain unresolved today, and the unfortunate reality that the publication of a consolidated single issuance of DoDI 1241.01 was not finally released until April 19, 2016--a persuasive argument perhaps could be made that proper application of this instruction should attempt to correct these very injustices previously identified, as clearly intended by Congress when it directed DoD to establish the RWTF in the first place back in 2010.

      I also wonder if an argument could be made that Army Directive 2016-22 (Authority to Initiate Applications to Correct Military Records on Behalf of a Group of Soldiers or Former Soldiers Who Were Similarly Harmed by the Same Error or Injustice) (dated May 31, 2016, http://www.apd.army.mil/epubs/DR_pubs/DR_a/pdf/web/ad2016_22_Final.pdf) should apply to this specific situation given that a group of Soldiers and/or former Soldiers and Veterans have indeed been similarly harmed by such injustices involving RC LOD/INCAP/IDES issues while waiting for a consolidated single issuance of DoDI 1241.01 to be released between 2012 and 2016 alone.

      Additionally, it is worth noting that the Department of the Army Office of Soldiers' Counsel previously published an information paper (Concurrent Receipt of INCAP and VA Benefits, dated September 24, 2015, https://www.jagcnet.army.mil/Sites/OSC.nsf/homeDisplay.xsp?tag=Information%20Papers#) which clearly contradicts the 2009 Army JAG legal opinion justifying an offset without any statutory authority to do so. Overall, I have been both living with and following these same issues since incurring injuries while deployed to Iraq in 2005 and would greatly appreciate having a detailed discussion with Mr. Jason Perry to help determine what legal options and possible remedies currently exist given my complicated individual circumstances… as well as further discussing with FloridaInjuredInCombat the various experiences he has endured when navigating similar RC LOD/INCAP/IDES issues directly relating to combat injuries incurred while deployed and the horrible administrative/medical processing which followed within both the active and reserve components over an extended period and will perhaps only carry over with the VA for many more years to come.
    6. ecs35395
      ecs35395
      After searching for and reviewing ARMY Board for Correction of Military Record (BCMR) decisions specifically involving this updated and re-issued regulation on LODs and INCAP Pay Entitlements, only 4 total documents were generated and I have attached a PDF of a very favorable outcome (dated 8 November 2016) directly citing relevant changes from DoDI 1241.01 for anyone interested, along with the corresponding link below: http://boards.law.af.mil/ARMY/BCMR/CY2015/20150012985.txt).


      Under the Consideration of Evidence section, the following simple statement of law and its retroactive application were both considered and ultimately relied upon by the Board when justifying the decision to grant full relief sought:


      "On 25 October 2016, the Chief, Compensation and Entitlements Division, Office of the Deputy Chief of Staff, G-1, concurred with the AR G-1's recommendation and recommended approval of the applicant's request for INCAP pay for the claim period 1 November 2014 through 31 May 2015. The official stated that in accordance with Department of Defense Instructions 1241.01, there is no offset of INCAP if the applicant is receiving Department of Veterans Affairs' benefits."


      Additionally, it is worth noting that the applicant (1) had presented to the Board orders issued by the U.S. Army Physical Disability Agency on 5 May 2015, which show he was released from assignment and duty based on a permanent physical disability and placed on the retired list on 9 June 2015; (2) provided a memorandum, dated 18 May 2015, from the commanding officer requesting an extension for the applicant to receive INCAP pay beyond the 6-month statutory limitation, which also listed the applicant's history of INCAP pay from 22 May 2010 through 31 October 2014 and also further recommended the applicant receive INCAP pay for 1 November 2014 through April 2015; and (3) submitted a VA Payment History, dated from November 2014 to May 2015, clearly demonstrating that this applicant had ongoing concerns regarding this requested INCAP pay being improperly offset by VA benefits which were (or had already been) received for the same period as these pending INCAP Pay claims requiring BCMR review.


      Given the context surrounding the issues with previous improper processing specifically relating to DoDI 1241.2 (2001) and DoDD 1241.01, the facts and very favorable conclusions referenced above, and the concerns outlined throughout this particular thread… I am cautiously optimistic that similar outcomes can and will be achieved in order to help correct some of the injustices which have negatively impacted far too many Service Members and Veterans for decades.

      Attached Files:

    7. Sapper91
      Sapper91
      I was Refrad in 2008 and 2009. I'm still in the Army National Guard and currently in the Meb Process now and unable to work due to many service connected issues and don't know if I'm eligible to get incap pay or not?
    8. Sapper91
      Sapper91
      I'm going thru the Meb now, and just went thru the C&P exam at the VA. The last time I was Refrad was in 2009. My unit said that even though I'm going thru the Meb, they didn't think I was eligible for Incap Pay! Is this True? or did they mess up?
    9. Jason Perry
      Jason Perry
      Don't know enough about the details of your situation to weigh in on what I think your entitlements are. However, if the question is "does going through an MEB/PEB disqualify you from INCAP pay?" the answer is no, it does not.
    10. Sapper91
      Sapper91
      Well Jason, I am in Army National Guard with over 18 Good Retirement Years, I was first in the Guard from 12-13-86 until 2-11-92 when I went Active Duty. I torn the meniscus in my left knee in 1993 while on Active Duty in Germany and since my unit was deactivating I did not go thru an Active Duty Meb, I was transferred state-side to Fort Carson, Co. Had a meniscus repair with lateral release in 1994 which resulted in my first P3 Profile. I Left Active Duty in 1995, was given a 10% Service-Connected Rating from the VA and went back to the Guard from 1995-1998 got out because of my knees bothering me and was later rated 30% thru the VA. Han an 8 year break in service and Joined the Guard 1-6-06 with a 30% service-connected rating thru the VA and my profile was only good for 5 years so it expired. I was Refrad from Kosovo Deployment in 2008 due to aggravation of my service-connected knees going out on me while training to deploy by the Doc at Fort Knox, KY and recommended my unit conduct an Meb. Came home, unit did nothing. I was Refrad from 92G10 (cook) Mos Training at Fort Pickett, Ar. by the base Doc due to aggravation of my service-connected knees swelling and going out on me due to physical training and standing for long periods of time in cook class. Doc recommended I attend an Meb when I got back home. Again, unit did nothing. In early 2010, I was told that I was being placed on Med Hold pending the results of a Chapter 3 Physical. I waited and nothing happened until 2014 when I finally got an LOD Investigation conducted during AT and it was Incurred in the LOD. I have been involuntarily extended for over 5 years in a row. I had a meniscus repair on my right knee in 2016 and as a result had to quit my civilian medical transit job because I couldn't drive with stitches in my leg. Nobody mentioned anything about Incap pay while I was unable to work. Since I was medical hold I didn't drill and did not get paid, but they would count my days for retirement purposes and they used my medical appointments in place of drill days so I would still get credit. But for some reason, my RPAM shows 18 yrs towards retirement and should read 19 yrs!! Somebody meesed up on my years! I was finally starting the Meb Process in May 2017 and that's when I heard about Incap pay. My unit said that my last Refrad was in 2009 and I probably wouldn't qualify since it was over 8 years ago. After my right knee surgery I'm now 80% service-connected thru the VA and haven't worked since Oct 16,2016. I just finished the Meb ordered C&P Exam last Thursday. So that's why I asked if I was eligible for incap pay or not. If so, how do I get my unit to get off their butts and do something? Sorry this was long, but now you have the details! Thanks!

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