Air Force Reserve Improper INCAP Pay - Is This Problem Common?

safetyisas

Registered Member
#1
Originally Posted by safetyisas

I recently (nearly four years after ILOD injury) was paid INCAP for the nearly 100 days that i was unable to work. i refused the amount because they calculated the INCAP using DODI 1241.2 para 6.2.1.2.1 Able To Perform Military Duties.

this in my estimation was the wrong refererence, it should have been para 6.2.1.1.1 Unable To Perform Military Duties. the difference is civilian versus military pay (and entitlements) the difference to me and my family is many thousands of dollars.

when i look up references to the military versus civilian pay, the distiction is pretty clear to me. My INCAP package clearly states that i was unable to work. i questioned AFRC about the pay and sent tham amongst other references 37 USC 204 (able/unable) prior to their attempted disbursement. but they paid me the lesser of the two (civilian wages) anyway.

has anyone else had this problem? it seems to me to be endemic within AFRC. Thanks and be safe.

Safetyisas
 

Jason Perry

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#2
sateftyisas,

Welcome!

Were you actually not working? I tend to think you are correct and have seen many (this is an understatement) issues with proper payment of INCAP pay. However, any analysis of a particular case depends on the facts of that case.
 

safetyisas

Registered Member
#3
Not working, not on sick leave and not on disability.

I was medically unable to work either my civilian job or my military job for the duration of INCAP (97 days) These facts are well documented in my INCAP package by both civilian and military doctors. Consequently, i did not perform IDT or annual tour during the INCAP period.

Bottom line; i was unable to perform military duties due to an injury the line of duty. when i finally received the INCAP settlement (nearly four years later), i refused it because AFRC improperly paid the lesser of civilian/military wages.

And - to justify paying me lost civilian wages, AFRC simply altered the DODI reference by removing or changing 50 words (including ABLE TO PERFORM MILITARY DUTIES) in a digitally signed email for disbursement of the INCAP pay.

Again, i refused the pay (10 days ago) based on my belief that INCAP pay is required to be calculated using the ABLE/UNABLE criteria and therefore should have received military pay and entitlements.

it is also my belief that this is a common practice by AFRC. MPF Chiefs and INCAP managers that i have spoke to have this faulty mindset that INCAP simply means receiving the lesser of civilian/military wages regardless of ablilty to work. if you know of specific instances that members have been paid improperly (especially civilian wages when UNABLE to Perform Military Duties) - PLEASE LET ME KNOW!

i have made contact with the military affairs laison for the Senator of my fine (and tropical) state and this could be included in the inquiry.

thanks again and be safe
 

Jason Perry

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#4
I have seen this happen several times. Unfortunately, because these incidents have come to my attention as a result of professional representation, I cannot share them as they are covered by attorney-client privilege. If you can resolve it easily through your Senator, then that may be easiest. However, if not, I would consider a BCMR application or just filing a claim directly in the US Court of Federal Claims.

If anyone wants to share their experience, please post in this thread.
 

safetyisas

Registered Member
#5
Jason, thanks for the quick reply. I'm still in the military reserves going on 30. i don't know that i am elligible to "sue" the gov'nt.

If you know otherwise, please give me a heads-up. also, since the action taken by AFRC (knowlingly altering a DODi to cheat my familly out of thousands), may have been deliberate and malicious can an amount be tacked on so they'll think twice about doing it to someone else (compensatory)???
 

Jason Perry

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#6
If you were denied compensation due under a "money mandating" statute (it sounds like you were), then you can sue. This is different than then rule that prohibits suits by military members against the government for torts. Those actions are prohibited by the Feres Doctrine because the government has not consented to be sued.

However, there are no additional remedies (punitive damages or the like) above the money wrongfully withheld. Basically, you can sue to get what you are due in these situations, but there are no additional monies recoverable.
 

safetyisas

Registered Member
#7
thanks again. no additional remedies - yikes!!! Then what would prevent this from happening to the next guy/gal?

i'll look up the money mandating statute - and see what's out there. SAF/IG is timidly assisting me too
...and there is the General who sat on the LOD investigation for 497 days. off-line contact [email protected]

I AM STILL LOOKING FOR AF RESERVISTS WHO WERE PAID CIVILIAN WAGES INCAP!!!!
 

Jason Perry

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#8
Not sure I understand the question...punitive damages do have a component of deterring future similar conduct. But, other than the fact that you are only able to get money damages to what you would have been due had they paid you correctly, it is the same as any other lawsuit. If there is a ruling, the government will most certainly respect it. It may prod responsible officials into action. And it may provide fodder for Congress to exercise oversight, hold hearings, etc.

I am curious why you are looking for others in the same situation, though. Are you trying to show someone that this is a systemic problem? Or that because it happened to others, it could have happened to you? If it is the former, and you are trying to work to address this, I think that makes sense. But the latter, it likely won't matter to resolving your personal case.

Hope you get the situation fixed. Best of luck.
 

safetyisas

Registered Member
#9
if this has happened to others in the AF Reserves as i suspect it has, then the more reason to do an inquiry for not only my case but others as well. not with the intent to bolster my case but real fact finding and problem solving for others who may have been short changed.

i suspect that this (paying memmbers the lesser of civilian/military wages regardless of ability to work) has been going on for some time now. the more informed that i am on improper INCAP within the AF reserves, the more informed the Senator's military liason wiill be. and therefore suitably armed to fight the good fight to help those who are injured in the line of duty.
 

Jason Perry

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#10
I have often thought about how to fix the INCAP pay problem (it happens a lot in the Army as well as the AF). Part of the problem is that INCAP requires de-centralized execution to initiate the process. If the unit does not brief the military member on the availability of INCAP and/or does not assist (as required) with filling out the forms, then the whole process stalls. I would tend to think that the fix later in the process would be easier (i.e, the people working on this should be trained subject matter experts...often they are not, but this should be an easy fix). Two ideas would be to make Wing/Brigade size elements responsible for tracking and reporting INCAP pay for their members and having this be an item that is inspected. The other would be to require a bullet comment on officer evaluation/efficiency reports covering care for wounded/injured members, including providing admin support. I think that these steps would put command emphasis on ensuring that the regulations are followed. These ideas are, of course, without tinkering too much with the current process. The other way to go would be to centralize the entire process, take it out of the units hands. If that happened, though, there still would likely need to be training/oversight into place, it would just be easier than trying to manage down at the unit level.


I think it is important to see whether INCAP is the best/correct payment source for the member. In many cases, especially for those injured on active duty orders greater than 30 days, they should probably be placed on orders. The difference mainly has to do with the fact that no points accrue to the member if they receive INCAP...so, for purposes of the eight year rule, for purposes of increasing their retired base pay, and for getting more time towards retirement for those near to 20 years, INCAP is not ideal.
 

Ruptured Duck

PEB Forum Veteran
#12
It's important for you to figure out how much money the Air Force owes you. Under $10,000 you can file in any Federal Court. Once the claim is above $10,000 you go to The United States Court of Federal Claims (USCFC).

The USCFC has jurisdiction pursuant to the Tucker Act, 28 U.S.C. 1491(a)(1). The statutory basis for invoking jurisdiction is the Military pay Act, 37 U.S.C. 204 which INCAP pay fall's under.
 

Ruptured Duck

PEB Forum Veteran
#13
The fact that "they" sat on your LOD for 479 days does not surprise me at all. IAW AFI36-2910 an informal LOD 348 has a time line of 18 working days. It's apparent that your command has no idea what they are doing which is quite common. I'm VERY interested in knowing more about this. Doug Strand and I want to change the whole process in how the DoD handles injured and sick Reserve and Guard members with Congressional Legislation. I'll try your email. Let's talk...
 

safetyisas

Registered Member
#14
"They" meaning my former commander who took that long to appoint a formal investigator. The entire LOD process took nearly 3 years to complete (ILOD).

Right now I am focusing on the AF IMT 1971 "Certification for Incapacitation Pay". This AFRC form has a serious deficiency which I have identified to SAF/IG as well as my chain. The problem lies on the physician's signature under "FIT FOR MILITARY DUTY BASED ON MEDICAL INFORMATION POROVIDED TO DATE". When the doc signs this form past the period of INCAP, and the member "IS FIT" - which the member usually is, then the AFRC takes this information and pays the lesser of civilian/military pay. This of course is improper. The form should reflect the member's ability to perform military duty DURING the time of INCAP - not afterwards as is the case when there is a delay in LOD processing or ANY delay where the doc would sign after the INCAP period.

The rammifications of this faulty form is significant. Anyone who's doc had signed this form since it was created in 1995 may have been affected by this misrepresentation of their fitness and paid the lesser of civilian/military pay and entitlements while INCAP.

PLEASE, PEASE anyone who has the ear of an agency or person that could intervene and recommend/demand an audit for members who have had their doc's sign this AF IMT 1971 post INCAP - Do Something RIGHT NOW!!! I'm also working on this from my end and as most of you know - it's not easy.

Thank you and be safe this summer,
Safetyisas
 

robs42

PEB Forum Veteran
#15
if you guys need any help or assistance w/INCAP issues, please let me know. i was injured in the LOD in aug 2006, kept on orders until oct 2008, where i remain to date. i just did my 100'th extension, since it's only good for 6 months. i have done everything correctly to the tee, throughout this process and my unit continues to drop the ball on my paperwork. i give them ample notice every time it get close to expiring (2months) and then remimd them @ least 1 month out and they still screw it up. i have gone months upon months w/o pay which is unacceptable. bad enough the program sucks, top it off w/no pay just adds to it. if you have to get a local politician involved. i had to. @ the end of the day these people don't care because it doesn't affect them, they still get paid on the 1'st and the 15'th. like i said earlier if u guys have any questions, feel free to contact me here @ any time. good luck and stay strong. "we are our only advocates!"
 

boomoper8tor35

PEB Forum Regular Member
#16
I'm a military technician on flying status in the ANG. While on 6-month Title 10 orders, I was injured and received an LOD. I have been on medical continuation orders and on DNIF status. The NGB has decided to put me on Incap Pay instead of the Medical Continuation Pay. My finance office just informed me that since I gross more as a technician, I will not receive any additional pay that I am losing. Flyers get 36 AFTPS which are like drill periods and I also received additional pay for pulling alert. Is the finance office correct in saying Incap only covers what I would lose in my civilian job? My civilian job is my military flying job.....
 

Ultrarider

Registered Member
#17
This is interesting. this started in 2010 and as of today there are still issues with INCAP pay outs and time lines. i believe that someone really needs to look into this more, As the Air force reserves are now doing more and more often, As like many other braches the Reseves seems to be lost when an injury happens. i've been dealing with this for almost two years now.
 
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