Are/Were you due INCAP pay?

FloridaInjuredInCombat

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Hey All,

If you were in the Guard or Reserves drilling and were medically unable to work your normal civilian employment or found Unfit for Duty because of a service connected (LOD) injury, then chances are you were/are due Incapacitation pay (INCAP pay).

If that applies to you, or another service member you know, GET THE WORD OUT, and tell your story here. The Guard it seems has a bad habit of not letting anyone know it exists, and if they do find out, flat out lying to deny it. They're stealing benefits from Soldiers just when they need them the most.

WHAT'S YOUR STORY, Here's mine...

For the last several months I have been out of work due to a spinal injury that was incurred in combat in 2005. I underwent multiple surgeries for it in 2006, but there was a lot of damage much of it not addressed at the time.

In 2005 in combat the injury was well documented, but the unit failed to do an LOD. So in 2006 I wound up on my own for the surgeries, even though my Guard unit was aware it was a combat related injury. For months I was incapacitated, with multiple surgeries and rehab.

Recently I stumbled across the regulation AR 135-381 and DA PAM 135-381. If you're unable to work, losing wages, or found medically Unfit for Duty do to an LOD injury, YOU'RE PROBABLY DUE INCAP PAY.

In 2013 the pain and numbness had returned to the point I could no longer work and was forced to seek medical treatment for the damage untreated in 2006. When I was finally seen by a military physician, I was also found Unfit for Duty and have since not been able to drill.

In early December I formally requested INCAP pay through my unit, and my command has been offering one lame excuse after another of why I won't be submitted for it. By refusing to submit it at the unit level (what I've found to be a common tactic) it never gets presented or ruled on by the Incapacitation Review Board. The Office of the State Surgeon is telling units NOT to SUBMIT, in order to deny DUE PROCESS.

Here's the list of shameful LIE's units have used to deny submission. Remember no matter what the unit commander does not have the authority to deny it at all, but that doesn't stop them from LYING and DENYING.


1.Only applies to Active Duty* - LIE
2.Need to have surgery to be eligible - LIE
3.Not for past LOD injuries* - LIE
4.Not eligible for any other period once you’ve been returned to duty* - LIE
5.No money in the budget - LIE
6.You make more from the VA than drill and AT pay - LIE
7.Omission – just not letting you know it’s available* - LIE
8.Must be a new LOD to count* - LIE
9.If you drew VA benefits, you’re not eligible for long overdue INCAP - LIE
10.Unit Commander can refuse to submit the cliam* - LIE
11.You just don't qualify... - LIE
12.Program doesn't exist anymore - LIE

* LIES they've told me personally... so far

Tell your story, and stop them from cheating injured Soldiers.

Thanks all,
Staff Sergeant, Combat Infantry Sniper, multiple tours
 
Hey, I am going through something like this now with the Guard. I am aware I am or may be due INCAP pay, it has been over a year that I am still not getting an answer. As of latest, they are saying that because I was told to and still attended drill I am being denied INCAP. Now, I did receive an LOD and while at drill, I did not participate, I do not understand this whioe thing, and bot sure where to turn for help :(
 
Hey Brother,

A few questions?
- Was/Is your LOD injury the cause of lost Civilian wages?
- At what point did you request INCAP pay through your Command?
- Were you seen by a Military Physician and found FIT or NOT FIT for duty?
- Have your INCAP monthly pay claims been submitted from your command to the Office of the State Surgeon (OTSS)?
- Have you received the FINAL LOD determination?

The way it is SUPPOSED to work is this;

- You incur an LOD injury, (including aggravating a pre-existing condition in the LOD).
- Your Command issues an INTERIM LOD Determination (DA Form 2173).
- You Request INCAP pay based on LOST WAGES.
- A Military Physician finds you FIT or NOT FIT for duty, and FIT or NOT FIT for your civilian employment.
- From then on, you submit an INCAP pay claim EACH MONTH through your command.
- Within the first 30 days, you are supposed to start receiving INCAP pay.
- If NOT FIT for duty, you are not allowed to attend drills, and receive Full Active Duty pay and benefits, as if you were FULL TIME on Active Duty, minus other monies received (Tier ONE)
-If FIT for duty, but NOT FIT for civilian employment, you attend drills, and receive your lost Civilian wages, minus other monies received, not including drill pay (Tier TWO).
- Within three months, the State Incapacitation Review Board (IRB) has to review it, vote on the claim, and either stop the payments, or continue the payments, based on the merits.


The main tactics I've run across so far;

- The Command refuses to submit your pay claim to State, thus stopping your claim even before it begins. They do this for a number of excuses, everything from "needing surgery to apply" to "your lost civilian wages don't count if you're attending drill" neither correct or valid reasons, in fact the Command does not have the authority to refuse submission of a claim. The tactic is to STOP the claim BEFORE the State Incapacitation Review Board (IRB) has to rule on it.

- If you get past the Command, and they actually submit the claim, the State (OTSS), will "SIT" on the claim and refuse to have it heard before the Incapacitation Review Board, which is "supposed" to hear the case, Vote YES or NO, if NO inform you of the reason for denial and afford you the opportunity to Appeal to the National Guard Bureau. This tactic is also to STOP the claim BEFORE the IRB has to rule on it.

- By NOT completing the LOD determination, the OTSS uses that as an (INVALID) excuse for not processing your INCAP pay claim. The actual regulation is to process the INCAP claim quickly, and finalize the LOD (by completing the line of duty investigation ,LDI) within time limitations, not to exceed either 40 days (informal LDI), or 75 days (formal LDI). By never completing the LOD, the State (Wrongly) refuses to process the INCAP claim.

All three tactics are meant to CIRCUMVENT the regulations and deny you INCAP pay BEFORE the State has to review the claim through the IRB. In every instance, they are VIOLATING regulations to do so.

Each case is different in the details. I am only a fellow Soldier, not legal counsel, but since going through this maze myself, am fairly well read on the regulations. My suggestion would be for you to Google AR 135-381, and more importantly DA PAM 135-381, which state the regulations that are "supposed" to be followed. Read over DA PAM 135-381 Sections 2-1 and 2-2, which are what you and the Command were supposed to follow from the start.
 
Here is another tactic.

The Medcom Dr does not make a fit or unfit for duty diagnosis... Instead, he writes a highly detailed profile that basically states that all you can do is wear boots and breath at your own pace. He told me that he can not legally write a no drill profile and as such, I am fit for limited duty because I can still offer something to the Guard like answering questions about regulations (cause I can read) but not answering phones cause medications make me loopy... Hmmm
 
The Medcom Dr does not make a fit or unfit for duty diagnosis... Instead, he writes a highly detailed profile that basically states that all you can do is wear boots and breath at your own pace.

Sounds like the Doc filled out a Medical Profile, but not DA Form 7574-1 Military Physicians Statement of Incapacitation / Fitness for Duty. That's the actual form required to be completed at least once every three months while you out for an LOD injury. It is one of the forms required to submit with the Monthly INCAP pay claim.

The 7574-1 has boxes to check; FIT or UNFIT for DUTY, and FIT or UNFIT for Civilian Employment. Pretty hard for the Doctor to get around it, since it is the key reason for the form.

Hope that helps...

BTW, One of the tactics I've seen is for the Command to say "Any Doctor can fill this out" (one and ONLY one block can be filled out by a Civilian Physician. Then when you FINALLY get it to the IRB, they deny it based on the requirement for it to be filled out by a Military Physician, which is IAW the actual instructions on the form. Key Lesson, believe what you can read over what your are told.
 
Actually, I went a couple of rounds with JAG over having a VA doctor fill out both medical sections (military and civilian) of the DA 7574-1. The Army PAM 135-381 uses the term government medical physician over and over again. I believe it only specifically mentions using a military physician when making a fit for duty determination in terms of returning to duty or as far as the incap board goes.

In support of using a VA doctor for the 7574-1, I found additional evidence to back it up. In my case, the instructions allowing the VA doctor to fill out the form was not enough. According to our HHS gate keeper, the VA can never make a determination of fitness. This is how and why JAG got involved. However, in AR 40-501 chapter 10, section 10-17 Examination Authorities gives the VA the ability to do fitness for duty examinations, separation/retirement examinations, and even permanent profiles. Chapter 10 is specific for the Army National Guard.

The MEDCOM doc wasnt interested in filling the 7574-1. He stated I still have something I can give the Guard even if it is simply answering questions my commander may have in regards to regulations and policy.

Right now, I have 19 months of incap pending. In Jan of 2013, my commander sent me home from drill after conferring with our flight doc about my medical impairments. I was given no direction and only told I would not be drilling until I could be further evaluated. In March I asked for and got a memo written by the commander which basically said I was excused for past and future drills until I could be further evaluated. No appointment was made. In July of 2012 the same flight doc referred me to the MEB. However, in May 2013, I learned this was not the case and in fact, all my medical records had been lost by both our medical section and MEDCOM. I was really pissed.

I learned about incap from this board in June. I submitted incap in July and then found out that no LODS had been done either. I also demanded a fitness for duty examination. I started butting heads with the HSS in G1. He first told me I had to choose between VA comp and Incap pay. Then there was no money in the Incap budget. Then my paperwork was no good because of the VA doc signing unfit for duty. This was the point when I began to really do my homework when it comes to the Regs. I tell ya... its been hard. Its been like a terrible poker game. They throw out a card that stops this whole thing then I throw out a card to get it back on track. The pot is 19 months of incap pay.

Now as of Thursday when I got the highly detailed profile, the HHS who was holding up the incap told me they will now authorize one month and only one month starting in March because that is the date of the commander's memo (not when I first started missing drill). The remainder of the incap apps will go to the incap board when the LODs are approved (2 are done and 2 are still pending) which will be 6 to 8 months from now. The incap board can only approve a total of 6 months before it goes to NGB for further approval.

Oh the fun of it all....
 
For the first part, the actual list of who and who is not allowed to sign the 7574-1 is on the second page of the form. If your Command instructed you differently at the time, THEY not you are at fault. When you first had them signed, did you submit them to your Command, because they also have the responsibility according to the regulation (DA PAM 135-381) to help you with properly filling out the forms (vetting them for submission). If they didn't catch the mistake at the time they were submitted, that's twice that THEY failed you. As for the VA doctor's signing, according to the form itself, the VA doc should also be an Active Drilling Reserve Military Medical Officer to qualify. So in that they are correct, but that doesn't let them off the hook for steering you in the wrong direction and saying it's OK when the forms were first turned in.

The MEDCOM doctor compounded the problem by not signing off on the 7574-1, but it's hard to convince a doctor to do what they're not willing to do, again, since he is in the military and "should" have filled it out, it is on the Military not you that it didn't get done correctly. The flight Doc getting involved as of Jan, was another missed opportunity on the Command to have the paperwork done right, but if I understand it correctly, at the time they weren't telling you about INCAP and you didn't know it existed. Again, your Command dropped the ball.

Typical misinformation... Your Command said you have to chose between VA comp and INCAP, that's wrong. Since you were not able to drill, you start at TIER 1, which is your full pay and allowances (BAH and BAS) for your rank and time in as if you were on ACTIVE DUTY for the WHOLE MONTH. Then DEDUCT any monies received that count, including VA comp. So if you AD pay and allowances are $4000 a month, and your VA comp is $1000, the Guard still owes you $3000 a month on TIER 1. TIER 2 is only different in that the baseline is your lost Civilian wages, same deduction rules.

As for paying "Only ONE month", NO WAY... You are "supposed" to receive INCAP as long as you are Incapacitated and have lost wages due to it. The bullshit excuse "there's no money in the INCAP budget" is common, this isn't like the FY2014 school money, as long as you're owed, they have to PAY. Tell them to post a tank or helicopter on Ebay if they need to drum up cash.

As for the LOD's, look on the original LOD (Interim LOD determination) your Commander or Medical Officer submitted, hopefully you have copies of all four. Check to see if the box is checked for "Formal" of "Informal". The date they signed it is the starting line for the time requirements. The LOD by regulations, is "supposed" to be completed "Finalized" within 75 days for a Formal LOD, and 40 days for an Informal LOD. There's no 6 to 8 months to it. And the Incapacitation Review Board (IRB), by regulations has to meet once every quarter (3 months) and normally they convene an IRB every month.

After RECEIVING six months of INCAP pay, NGB gets involved, but as long as you're out for the LOD injury they "should" keep you on INCAP pay. There is no actual limit to how long you can be on INCAP pay, the idea being if you're on it for more than a year, you should have already been processed for a medical discharge. The regulations state "should continue to receive Incapacitation Pay as long as the conditions warranting it exist".

If you're state is like mine, these foul ups and misinformation stem from the Office of the State Surgeon (OTSS). They are the ones who advise the Commands, gather the documents, and have one vote at the IRB. The other votes belong to the board's head a Major or higher (not medical or legal) and another Officer. A fourth Officer to sit at the board is JAG, who I believe cannot vote but is there to advise any legal questions.

I would advise you to gather up what you have, draw out a simple timeline, showing the month and what took place each month, highlight the foul ups by the command, and when you sought medical treatment, and had papers signed by whomever signed them. Add to it a polite but firm letter stating where the regulations were not followed, and that the Command directed those mistakes, and send it up the chain, through your Command and the Office of the State Surgeon but addressed to the Incapacitation Review Board. Send it up and give them a week to respond.

Then send the same timeline and letter to the Governors Office, BOTH Senators from your State, and the Federal Representative for your District. Follow that up with phone calls to each office, and a face to face with their Military Affairs contacts. Hopefully that will give the Command and OTSS the swift kick they need to make this right.

In any case, KEEP UP THE FIGHT. Some of the cases I have seen took years, and I don't think you're to the point of having to wait that long. The sooner you put their feet to the fire, the sooner this will be straightened out.
 
Update - 92 days after the LOD was first generated (far in excess of the 40 allowed for the process by regulation), and a full 9 1/2 years after the LOD injury itself, which was sustained during a combat deployment in 2004-2005. The NGB has finally come back with an Approved LOD!

Of course the MRI and military physicians notes from that deployment show 8 discs to be damaged, with the worst of the damage at the lower lumbar, while the LOD is specific to only two discs, both mid-back (thoracic), and only one of those being part of the original 8 discs damaged.

Swing and a miss...

I will immediately send it back for correction. 93 days and counting.
In the meantime hopefully, it will start to crack open the door to receiving needed treatment and INCAP pay.
 
Hello everyone, hope it is a good day for you, I take one day at a time now,
anyway, I requested incap from the day I nearly died in May of 2013, I incurred a new condition of status epilepticus, I had previously been diagnosed with a seizure disorder, severe, but this day was different. I had major seizure after major seizure until they had to induce a coma to get me to stop. I was on life support for a little over 36 hours and no one from my unit (2 1/2 hrs away) even came to see me (nice show of brotherhood). Anyway, I was instructed by my neurologist to not work for the time and I could no longer work in the construction field as I had basically since I was 24. I told the military that my family would be struggling extremely due to this loss of income and requested incap pay and they constantly sidestepped the issue. After they tried to just get me to sign the unfit letter (not duty related) to kick me out I told them that I had LOD's for what they were trying to kick me out for and requested the disability process. I have been found unfit for seizure disorder and chronic adjustment disorder due to seizures and am awaiting new ratings from the VA. I was previously found fit by a pre-MEB and got rated 40% from the VA for the seizures at that time, total 80% VA rating. My psychological was denied until now but just don't have a percent yet.
I just sent my TAG an email requesting him to look into my request for incap pay and to look at the command climate of my unit. I had previously initiated 2 IG complaints regarding my unit's leadership. They previously found that my unit had problems but things they could work on so nothing drastic had to be done. Funny thing, the IG and the XO were OCS buddies and had known each other for years. Anyway, I just opened a can of worms and I hope they don't turn around and eat me. Have a good day!
 
Walker, hope it works out for you. Did you first become epileptic while on Active Duty? Not sure how the Guard would handle someone becoming epileptic while on drill, unless it was connected to some kind of injury or other aggravation.

Hopefully the TAG will at least steer you in the right direction, good luck.
 
Thanks, I was AGR for about 3 years before I had my first seizure. I have had several since, left active duty in 2011 after about 5 years active. That is how seizures got service connected.
 
Hello all, I have re-requested incap pay from my unit in the WVARNG. I first had three major seizures (near death) while on AGR status. My state was trying to get me medically discharged and I went to Walter Reed and they said because I was slightly under medicated and my job was that of an instructor that I was fit enough for my job and returned me to duty without starting an MEB. I was concerned with suddenly getting kicked out due to medical so I resigned and went back to civilian work. In January 2013 I had a seizure while driving home from guard weekend and then had a second while in the ER. I was not allowed to work for the time being. I believe I should have been placed on INCAP pay at this time, a LOD was done, but was not placed on incap pay. After a while I returned to work for a trial period, worked for about 6-8 weeks when on mother's day morning May 12, 2013 I had repeated seizures in which they had to induce a coma a put me on life support to save my life. I remained on life support for about 48 hours when I finally pulled through. Once well enough, I requested incap pay again and they have taken no action. In Dec 2013 I formally started the MEB process and am currently in the awaiting VA ratings stage. I have already been rated at 80% but they missed a few diagnoses. Anyway, I requested again today to be put on incap pay and requested they follow up with me the reason for denial if I am denied. Opinions anyone? Thank you
 
Every situation is unique, but it seems that if you were on Active Duty orders (AGR) when the seizures first started, and the LOD came back as In the Line of Duty, you should be due INCAP if you're unable to perform either your civilian or military duties, and have lost wages as a result. Problem is, the system seems geared to deny first and hold at the unit level, and in doing so keep you from being heard by the actual Incapacitation Review Board, and if needed the ability to appeal to the NGB.

If you haven't already, carefully read over DA PAM 135-381, section 2-1 is YOUR responsibilities and section 2-2 is the UNIT's. Then formally request INCAP pay (if you haven't already), via e-mail so you have a record of it. Push to be evaluated by a Military Physician and have the 7574-1 (good for 90 days at a time) properly filled out. Next its a matter of getting your unit to turn in the monthly packets to the Office of the State Surgeon (OTSS). For many that's an obstacle because it seems that OTSS likes to deny things at the Unit just to keep it out of the system.

Because this problem goes back a ways and even if you asked for INCAP back then, much of the required steps were most likely skipped. So now you'll have to do some rummaging to find any and all documentation of both the injury and conditions at each time frame, lost wages, and any requests for INCAP you made from the start till now. I have seen cases held up because so much time has passed and documents are now missing or weren't done right from the start.

From today on, start putting in complete monthly INCAP packets, as if everything else was going to plan, that way, when you finally get it done, you won't be out for not having done the steps needed when they were needed. Make sure your command acknowledges receipt and there completeness each time you turn them in (CYA).

I hope it works out for you.
 
Hello, thanks for the reply, they responded and said that it had been too long to tie it into the seizures while on active duty, 2010, and the one in January 2013 had an informal lod, I was pressing for a formal lod, but they would need to track every second of my day and that it could screw up the lod and that the informal was just as good. Today they said because it was informal is the reason I couldn't get incap pay. They emailed back a short while later asking for proof of income just prior to January 2013. I am a member of a union hiring hall and we work when work is available. I worked the month of October 2012 on active duty for the military,November 2013 I worked 2 weeks for a union contractor before getting laid off, and then in Dec 2012 I worked 1 week for another contractor, the rest of the time I was laid off. The seizure in January was over like January 5,6. I explained to them that I was on a "work list" and that I could get proof of that if they wanted it. The problem is, after a seizure I am on seizure precautions which don't allow me to perform my construction trade due to safety, the first one the doc didn't want me to work for 4 to 6 weeks. I returned to work in the middle of February 2013 and worked until I had the more severe seizure episode in May in which, due to the severity, I haven't been released to go back to work, plus they had been changing medicine levels due to side effects. Thanks.
 
Here are the emails I got, first one about 2:35, 2nd at 345
SFC,

Ok, after talking to SPC ***** at AMMED, one of the reasons the INCAP was denied is due to the LOD in January being left as informal per your request. INCAP pay requires a formal investigation into the incident as well as proof of income at the time. Unfortunately, we cannot tie these to the issues you were having while at Camp ******, due to the fact that you were found fit for duty and returned to duty since being seizure free for a year after the March of 2010 LOD. As for legal’s contact information, it is CPT ********** at ***-***-****, please feel free to consult him if you would like. I hope this has helped clarify some of the confusion and answer some of your questions. As always, if you have any other questions please let me know.


SSG **** ******

2nd

SFC,

I just checked with SPC ****** from AMMED on this issue. Do you have proof of employment for January of 2013 prior to this incident?

Thanks for any help


SSG **** ******
 
Welcome to the "smoke and mirrors" section of your INCAP claim.

First off, as I read the LOD process, the difference between a formal and informal LOD is the type of investigation. Informal when the CO has reason to accept the facts as they are, and formal when more investigation is needed to make a determination. Doesn't as far as I have read have a thing to do with what's actually important, and that would be the Finalized LOD Determination, which you should have received from NGB within (40 days for the informal) or (75 days for the formal). It comes in a letter format, which states what the injury was, and if it was IN the Line of Duty, or NOT IN the Line of Duty.

Informal LOD's are the more common, and they qualify just as much as the formal LOD for INCAP pay, it's the Finalized LOD Determination (letter from NGB) that matters. Did you receive one?

The fact its been a while since you had a seizure isn't a just reason for them to deny INCAP. Once an LOD injury it is always an LOD injury, unless of course you re-injured it somewhere else.

The excuse about being found fit for duty, only ends that period of INCAP pay. If you relapse later on down the road, you should be covered. The regulations say that INCAP should continue AS LONG AS THE CONDITIONS THAT WARRANT IT EXIST.

As for showing what your lost wages would be, you are a "special case" in that someone that works out of a Union hall doesn't work all the time, nor for any particular employer. I have run across this before. DA PAM 135-381, Section 2-1, e, 4c. is for self-employed and seasonal workers, and applies to you as well. What you have to show is your AVERAGE wages while working in the Union. If you were on AGR a few months prior, that makes it difficult to show on that years W-2's.

I would write a letter to the OTSS, sent through your command, quoting 2-1, e, 4c. and providing the W-2's (income) for the year just prior to the INCAP period, and if available another year's W-2's where you made exclusively Union wages. It might take some negotiation with OTSS, but you should be able to agree on an "average" wage for your type of employment.

Bottom line, they will tell you again and again that this reason or that reason will deny you INCAP. Its up to YOU to know BS when you hear it and push past the opposition. The best way to do this is to know the regulations backwards and forwards.

Work with them on supporting documents as much as you can, negotiate the lost wages calculation based on W-2's showing what you normally would make, don't take NO for an answer, and make them push this up to the OTSS, that way they will have to actually review it per the regulations, allow you INCAP, or give you a just reason for denial, which you can then appeal to NGB if needed.
 
Thank you for replying, very informative, I will follow up with my personnel section on Monday with info you provided, once again, thank you
 
I know this is an old thread, but I was hoping I could resurrect it to get some thoughts on my husband's situation?

My husband is an Army Reservist who is in the middle of the IDES process. About 6 months ago, he was notified by someone within his command about INCAP pay but no one knew any of the specifics of how to get it. Over the last 6 months or so, I have been doing a ton of research on INCAP, with most of the thanks to this forum! According to what I have researched and calculated, my husband would be due a rather large amount for incap if everything goes according to how I am interpreting the regulations. The large sum of money would be for Tier 1 and Tier 2 losses over the course of the last 5.5 years. My husband, however, is skeptical that he will get any money at all. His command is supportive but they aren't fully versed in INCAP. He is a skeptic and thinks INCAP pay is too good to be true. I am confident that his Tier 1 incap losses will be paid out eventually, but it's the Tier 2 losses that I am now doubting.

My husband has ILOD bipolar from his active duty days. He went straight from AD to Reserves (the ILOD wasn't determined until he was well into his time in the Reserves). After AD, he landed his dream job for which he had a security clearance. After a hospitalization in 2013, he lost this security clearance and lost his job because he could only work for this company with a security clearance. He was unemployed for 6.5 months. He took the first job that he was offered. Since he lost his job due to the loss of his security clearance, would this be eligible for Tier 2? He has the 7574 military physician forms signed that he was not able to perform his civilian duties for that 6.5 month time period.

This whole LOD bipolar has drastically changed our lives and not for the better, obviously. So, to think that he could be compensated in some way for those times over the last 5 years that he was unfit for military duty and his civilian work, it would just be a miracle for our family right now. But, I am worried that I am clinging too tightly to INCAP when it may not be realistic?

So, my main question is: Tier 2 incap eligible for the time he was unemployed due to loss of his clearance from hospitalization for LOD illness?

Thank you very much for taking time to help me!
 
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