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Anyone here had VA Disability Benefits "Recouped" from INCAP pay?

FloridaInjuredInCombat

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Has anyone here, besides myself had their VA Disability payments "Recouped" (taken) from their INCAP Pay? If so when?

The reason I ask if I am planning on filing a claim in the Court of Federal Claims for wrongful recoupment (as such action was in fact in VIOLATION of the Laws, and of Dept. of Defense [DODI 1241.01] and Dept. of Army Directives [Army Dir. 2017-17]), and I would like to know if there's enough who've been CHEATED in this fashion to warrant a Class Action lawsuit.
 

Guardguy11

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INCAP is a rarely used mechanism in the DOD. I'm glad it is an option, but good luck finding enough people to warrant a class action lawsuit. I've been around these boards for awhile and have known one person that used it successfully. Several people have applied but most are denied or pushed to MEDCON.
 

ecs35395

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Although I commented a few times on your threads back in 2017, I never outlined the specific details of my medical processing issues directly relating to me also having VA Disability Benefits recouped from INCAP Pay by the Massachusetts Army National Guard in violation of all the sources you cited above.

These recoupment actions were also contrary to existing Army policy at the time (outlined in Army Regulation 135-381, Incapacitation of Reserve Component Soldiers, dated December 27, 2006 and Department of the Army Pamphlet 135–381, Incapacitation of Reserve Component Soldiers Processing Procedures, dated May 22, 2008), ultimately resulting in VA both creating and collecting upon a substantial overpayment debt (covering 2009-2012) in 2017 after my IDES processing and placement on PDRL was completed in 2015. As justification for the recoupment, I also received that very same 2009 legal opinion you had previously cited, stating "From a statutory basis, there is no authority to offset INCAP by VA benefits received... As a matter of Army policy however, a Soldier cannot receive both full INCAP and DVA pay UT AR 135-381 and DA Pam 135-381."

Unlike your situation, I have been unsuccessful at every turn whenever seeking assistance and proactively trying to solve this issue, both when dealing with VA and anyone within the Military. Additionally, it seems like a losing proposition at this current stage for me to submit a claim to the ABCMR without even having access to basic information (historical DA Form 1379 documentation, MEDCHART records, DMDC LOD Benefit Transaction File, etc.) from which to review, submit as evidence, and state a claim for relief and/or not yet having exhausted all administrative remedies to correct the alleged error or injustice, including receiving and presenting an advisory opinion to rebut the presumption of administrative regularity as is required to overcome the burden of proving an error or injustice by a preponderance of the evidence according to ABCMR guidance and as is most certainly necessary when thoroughly reviewing the collective body of the Board's non-precedential case-by-case decisions pertaining to these types of cases.

I would love to further discuss our collective situation and also see more individuals post their experiences with this specific issue, as I can only imagine that most folks in the Reserve Component were not fortunate enough to even receive any information on INCAP Pay in the first place while also struggling just to receive basic access to medical care, LOD benefits, and IDES processing whenever necessary. Please message me so we can further discuss this matter and hopefully figure out a way to remedy this error and injustice, as we both know that having VA Disability Benefits recouped from INCAP Pay is just the tip of the iceberg for far too many of our fellow brothers in arms when dealing with the many wounds of war for decades when fighting for justice mostly alone and without much hope for restoring all that has been lost along the way. Take care and I look forward to talking to you soon...



 

chaplaincharlie

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I am not an attoren or an attorney spokeman. Woud it be possible once a suit is filed, to identify others who who might be eligible to be part of a class action suit via discovery?
 

FloridaInjuredInCombat

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I am not an attoren or an attorney spokeman. Woud it be possible once a suit is filed, to identify others who who might be eligible to be part of a class action suit via discovery?
Not an attorney either, but I think that's the way its done. I believe the lawyer can ask the Court for the information from the military. How forthright and cooperative the military would be on that is the question. I was hoping to find at least a few others in the same boat, both to convince the attorney it's worth the trouble to file as a Class Action, and it would also serve as a check on the Government if they failed to produce information on the ones who we then knew should be on that list. Thanks.
 

FloridaInjuredInCombat

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Although I commented a few times on your threads back in 2017, I never outlined the specific details of my medical processing issues directly relating to me also having VA Disability Benefits recouped from INCAP Pay by the Massachusetts Army National Guard in violation of all the sources you cited above.

These recoupment actions were also contrary to existing Army policy at the time (outlined in Army Regulation 135-381, Incapacitation of Reserve Component Soldiers, dated December 27, 2006 and Department of the Army Pamphlet 135–381, Incapacitation of Reserve Component Soldiers Processing Procedures, dated May 22, 2008), ultimately resulting in VA both creating and collecting upon a substantial overpayment debt (covering 2009-2012) in 2017 after my IDES processing and placement on PDRL was completed in 2015. As justification for the recoupment, I also received that very same 2009 legal opinion you had previously cited, stating "From a statutory basis, there is no authority to offset INCAP by VA benefits received... As a matter of Army policy however, a Soldier cannot receive both full INCAP and DVA pay UT AR 135-381 and DA Pam 135-381."

Unlike your situation, I have been unsuccessful at every turn whenever seeking assistance and proactively trying to solve this issue, both when dealing with VA and anyone within the Military. Additionally, it seems like a losing proposition at this current stage for me to submit a claim to the ABCMR without even having access to basic information (historical DA Form 1379 documentation, MEDCHART records, DMDC LOD Benefit Transaction File, etc.) from which to review, submit as evidence, and state a claim for relief and/or not yet having exhausted all administrative remedies to correct the alleged error or injustice, including receiving and presenting an advisory opinion to rebut the presumption of administrative regularity as is required to overcome the burden of proving an error or injustice by a preponderance of the evidence according to ABCMR guidance and as is most certainly necessary when thoroughly reviewing the collective body of the Board's non-precedential case-by-case decisions pertaining to these types of cases.

I would love to further discuss our collective situation and also see more individuals post their experiences with this specific issue, as I can only imagine that most folks in the Reserve Component were not fortunate enough to even receive any information on INCAP Pay in the first place while also struggling just to receive basic access to medical care, LOD benefits, and IDES processing whenever necessary. Please message me so we can further discuss this matter and hopefully figure out a way to remedy this error and injustice, as we both know that having VA Disability Benefits recouped from INCAP Pay is just the tip of the iceberg for far too many of our fellow brothers in arms when dealing with the many wounds of war for decades when fighting for justice mostly alone and without much hope for restoring all that has been lost along the way. Take care and I look forward to talking to you soon...



I PM'ed you... to talk in private if you'd like.
 

Jason Perry

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Wait...I am not sure I see any violation of law or regulation by not allowing dual receipt of VA and INCAP (or other military pay).

Can anyone explain with a specific citation to the statute or regulation why this is not permitted. (I have dealt with this issue of recoupment and offset of compensation before the BCMRs and in the US Court of Federal Claims many times, so I am familiar with the issues).
 

Jason Perry

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As for class actions in the US Court of Federal Claims, I can explain how that process works, if folks are interested.
 

Jason Perry

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As for class actions in the US Court of Federal Claims, I can explain how that process works, if folks are interested.
One other point on US Court of Federal Claims cases....I would suggest that some issues are "in flux" as there has been a HUGE overturn of judges in this court over the last four years. I did a cursory count a few months ago, but it was something like 2/3rds of the active judges were newly appointed over the past four years. There has recently been two changes in the Chief Judge. (If you assume, correctly, that the new judges are Trump appointees, you might assume something about this. I can offer my experiences with the judges- and remember there are many Senior Judges still hearing cases.....but, I would not make any assumptions about judicial philosophy, etc. Actually, if you take a close look at CoFC cases, they are essentially administrative law cases, and the more conservative judges and scholars are sometimes very hostile to overreaching by the administrative agencies.)

This post might have been better presented as an 8 Volume treatise, based on all of the issues that I have touched on.
 

FloridaInjuredInCombat

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One other point on US Court of Federal Claims cases....I would suggest that some issues are "in flux" as there has been a HUGE overturn of judges in this court over the last four years. I did a cursory count a few months ago, but it was something like 2/3rds of the active judges were newly appointed over the past four years. There has recently been two changes in the Chief Judge. (If you assume, correctly, that the new judges are Trump appointees, you might assume something about this. I can offer my experiences with the judges- and remember there are many Senior Judges still hearing cases.....but, I would not make any assumptions about judicial philosophy, etc. Actually, if you take a close look at CoFC cases, they are essentially administrative law cases, and the more conservative judges and scholars are sometimes very hostile to overreaching by the administrative agencies.)

This post might have been better presented as an 8 Volume treatise, based on all of the issues that I have touched on.
Mr. Perry, I believe it boils down to the Law (USC. 37, Section 204) only allowing for "Earned Income" to be deducted from INCAP pay. VA Disability Benefits do NOT qualify as "Earned Income".

The VA General Counsel stated as much in 1990, ref:
CITATION: VAOPGCPREC 10-90
Vet. Aff. Op. Gen. Couns. Prec. 10-90
payments to reservists under the provisions of 37 U.S.C. § 204(g), (h) and (i) are made at a time when reservists are no longer in an "active duty" status and do not otherwise represent "active service pay." Therefore, the prohibition against concurrent payment of benefits contained in 38 U.S.C. § 3104 (c)
is not applicable to these payments.


Army JAG mirrored that opinion in 2009, but when on to pretty much say "it's Army Policy, so keep trucking". (see attached, since its a photocopy and I can't copy the quotation).

Then in 2016, Dept. of Defense put out DODI 1241.01, stating such recoupment is not allowed.
Excerpt, from Enclosure 4, Item 4 of DODI 1241.01, April 2016
4. RECEIPT OF BOTH INCAPACITATION PAY AND U.S. DEPARTMENT OF VETERANS AFFAIRS BENEFITS. Service members may receive both incapacitation pay and Department of Veterans Affairs (VA) benefits. Since VA benefits are not taxable, they do not meet the definition of earned income. Incapacitation pay will not be offset by VA benefits received.

In July of 2017, Sec. of the Army put out Army Directive 2017-17 restating the DODI instructions that such recoupment is not allowed.
10. Soldiers may receive both INCAP and U.S. Department of Veterans Affairs (VA) benefits. Because VA benefits are not taxable, they do not meet the definition of earned income. INCAP will not be offset by VA benefits received in accordance with reference 1b.

I hope this helps others in the same spot. I filed two appeals to DFAS citing DODI 1241.01, and Army Directive 2017-17 respectively, and both times got a Form Letter Denial without them even trying to explain why they decided to ignore the Dept. of Defense and Sec. of the Army's instructions.

ABCMR Advisory (which I received earlier this month) supported my claim, including a statement that both the Florida National Guard and National Guard Bureau Office of the Chief Counsel, ALL recommended relief by the Board, so "hopefully" that's what will happen.

My concern is, that IF the Board decides to ignore everything and rule against me, I'm fast approaching the Statute of Limitations for filing in the Court of Federal Claims. It would be miserable to have what I consider a SOLID Legal Argument in my favor (VA Legal Counsel, Army JAG Legal Counsel, Dept. of Defense, Sec. of the Army, ABCMR Advisory [panel?], Florida National Guard, and the National Guard Bureau Office of the Chief Counsel, ALL in agreement that such recoupment is NOT supported by the Law), only to have it brushed aside by the ABCMR and my window for the Court of Federal Claims closed.

Its my understanding that it costs thousands of dollars to file a claim in Federal Court... and I'd still be willing to go that route if it could be filed as a CLASS ACTION to help everyone who DFAS wrongfully collected a "debt" by ignoring the Law.

Is there a Legal provision to file in the Court of Federal Claims past the normal Statute of Limitations due to having to wait on the ABCMR finding?
Any advice you have would be greatly appreciated.
 

Attachments

  • ARMY JAG Legal Opinion Feb 2009.pdf
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FloridaInjuredInCombat

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Attached is the Advisory I got earlier this month... and my addition to the Advisory for consideration from the Board.
 

Attachments

  • ABCMR Recommendation Favorable, Rees REDACTED - Copy.pdf
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  • Advisory Board comment additions.docx
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chaplaincharlie

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Not an attorney either, but I think that's the way its done. I believe the lawyer can ask the Court for the information from the military. How forthright and cooperative the military would be on that is the question. I was hoping to find at least a few others in the same boat, both to convince the attorney it's worth the trouble to file as a Class Action, and it would also serve as a check on the Government if they failed to produce information on the ones who we then knew should be on that list. Thanks.
I have been on the discovery end for the government. Can't say everyone is as diligent, but I sure did not want to commit fraud against a court.
 

Jason Perry

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I am not an attoren or an attorney spokeman. Woud it be possible once a suit is filed, to identify others who who might be eligible to be part of a class action suit via discovery?
In the US Court of Federal Claims, there is generally very limited "discovery." In the military disability and military pay cases, almost everything is litigated based on the administrative record before the agency. That is just an aside; as to the real issue of the possibility of getting the military to provide the information about the identity of similarly situated persons to join a class, what would normally have to happen is that the court would have to certify the class first and then the military would be obligated to identify any members of the class. The rules are a bit different from what you see in normal civil litigation where the plaintiff would normally have to identify the class members who opt in. With the government as the defendant and being in the unique position of being the only party with the information, they normally have to provide the notice.

Much of this played out in the Sabo litigation (this was the case about minimum temporary ratings under 38 CFR 4.129). One factor in Sabo, though, was that the government conceded error and that it was appropriate to proceed on a class action basis. There was no real fight from the government on many issues, so things could be different when the issues have to be litigated.


Not an attorney either, but I think that's the way its done. I believe the lawyer can ask the Court for the information from the military. How forthright and cooperative the military would be on that is the question.

Once the court certifies the class, I would not have serious concerns about non-compliance by the government.

Mr. Perry, I believe it boils down to the Law (USC. 37, Section 204) only allowing for "Earned Income" to be deducted from INCAP pay. VA Disability Benefits do NOT qualify as "Earned Income".
This is the first time I have heard of this issue (offset of INCAP and VA disability compensation) so I haven't dived in and fully analyzed the issue. Given the general prohibition on dual receipt, my gut instinct was that the offset is proper. However, the positions you have described in the Op Gen and BCMR Advisory opinions suggest you may be on to a viable claim.


The VA General Counsel stated as much in 1990, ref:
CITATION: VAOPGCPREC 10-90
Vet. Aff. Op. Gen. Couns. Prec. 10-90
payments to reservists under the provisions of 37 U.S.C. § 204(g), (h) and (i) are made at a time when reservists are no longer in an "active duty" status and do not otherwise represent "active service pay." Therefore, the prohibition against concurrent payment of benefits contained in 38 U.S.C. § 3104 (c)
is not applicable to these payments.


Army JAG mirrored that opinion in 2009, but when on to pretty much say "it's Army Policy, so keep trucking". (see attached, since its a photocopy and I can't copy the quotation).
The above does concern me. I did not read either the Op. Gen. opinion or any TJAG opinion on this, but, I did take a quick look at 38 U.S.C. § 3104 (c). What concerns me is that this section is part of Chapter 31, Training and Rehabilitation, so not clear why that would be relevant to disability compensation issues. Would have to take a deeper dive to form an opinion.


Then in 2016, Dept. of Defense put out DODI 1241.01, stating such recoupment is not allowed.
Excerpt, from Enclosure 4, Item 4 of DODI 1241.01, April 2016
4. RECEIPT OF BOTH INCAPACITATION PAY AND U.S. DEPARTMENT OF VETERANS AFFAIRS BENEFITS. Service members may receive both incapacitation pay and Department of Veterans Affairs (VA) benefits. Since VA benefits are not taxable, they do not meet the definition of earned income. Incapacitation pay will not be offset by VA benefits received.
This does seem to be very favorable to your position. Almost enough, on its own to make me think you should prevail.

In July of 2017, Sec. of the Army put out Army Directive 2017-17 restating the DODI instructions that such recoupment is not allowed.
10. Soldiers may receive both INCAP and U.S. Department of Veterans Affairs (VA) benefits. Because VA benefits are not taxable, they do not meet the definition of earned income. INCAP will not be offset by VA benefits received in accordance with reference 1b.
Same as the previous comment. This is very strong support for your position.
I hope this helps others in the same spot. I filed two appeals to DFAS citing DODI 1241.01, and Army Directive 2017-17 respectively, and both times got a Form Letter Denial without them even trying to explain why they decided to ignore the Dept. of Defense and Sec. of the Army's instructions.

ABCMR Advisory (which I received earlier this month) supported my claim, including a statement that both the Florida National Guard and National Guard Bureau Office of the Chief Counsel, ALL recommended relief by the Board, so "hopefully" that's what will happen.
The form letter denial, without any explanation, would likely be a basis for getting at least a judicially ordered remand if you were to go to court.

Did not have a chance to read the attachments. However, getting favorable advisory opinions are helpful (much better than a recommended denial).
My concern is, that IF the Board decides to ignore everything and rule against me, I'm fast approaching the Statute of Limitations for filing in the Court of Federal Claims. It would be miserable to have what I consider a SOLID Legal Argument in my favor (VA Legal Counsel, Army JAG Legal Counsel, Dept. of Defense, Sec. of the Army, ABCMR Advisory [panel?], Florida National Guard, and the National Guard Bureau Office of the Chief Counsel, ALL in agreement that such recoupment is NOT supported by the Law), only to have it brushed aside by the ABCMR and my window for the Court of Federal Claims closed.
The statute of limitations is a bright line issue. If you pass it, it deprives the court of jurisdiction (the power to hear a case). Normally, the running starts on the date that a person is entitled to compensation and later appeals to administrative boards do not stop the clock running. One thing to consider, however, is that there are "continuing claims" where a claimant may lose out on earlier that six years ago due monies, but, not on later months that still fall within the six years.

Sometimes, it is advisable to file a suit then request a stay while the agency (in this case the ABCMR) adjudicates it. This approach is actually discussed favorably in several cases and almost certainly a stay would be granted.


Its my understanding that it costs thousands of dollars to file a claim in Federal Court... and I'd still be willing to go that route if it could be filed as a CLASS ACTION to help everyone who DFAS wrongfully collected a "debt" by ignoring the Law.
The fee for filing a complaint in the US Court of Federal Claims is currently $402.00. However, with attorneys fees, it can easily run into the tens of thousands of dollars or more to litigate a full case. Much depends on the complexity, volume of records, and legal issues.

I don't know that I would be fixated on filing a Class Action as determinative as to whether file suit at all or not. It seems very likely to me that what happened to you has happened to many thousands of folks over the years so a class action might be maintainable. However, a favorable judicial opinion would likely serve to help others, too.

All of that said, you might consider reaching out to National Veterans Legal Services Program, which is a non-profit that does pursue this type of litigation (they were involved with the Sabo case, though another firm actually did the bulk of the legal work in that case.)
Is there a Legal provision to file in the Court of Federal Claims past the normal Statute of Limitations due to having to wait on the ABCMR finding?
Any advice you have would be greatly appreciated.
See my above comments. There are very narrow exceptions to some SOL issues, but for the most part, no. You want to meet the SOL or risk the case being dismissed for lack of jurisdiction.

When I get a chance, I will read over the attachments. Might not be for some time. Interesting issues. I hope you win.
 

FloridaInjuredInCombat

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In the US Court of Federal Claims, there is generally very limited "discovery." In the military disability and military pay cases, almost everything is litigated based on the administrative record before the agency. That is just an aside; as to the real issue of the possibility of getting the military to provide the information about the identity of similarly situated persons to join a class, what would normally have to happen is that the court would have to certify the class first and then the military would be obligated to identify any members of the class. The rules are a bit different from what you see in normal civil litigation where the plaintiff would normally have to identify the class members who opt in. With the government as the defendant and being in the unique position of being the only party with the information, they normally have to provide the notice.

Much of this played out in the Sabo litigation (this was the case about minimum temporary ratings under 38 CFR 4.129). One factor in Sabo, though, was that the government conceded error and that it was appropriate to proceed on a class action basis. There was no real fight from the government on many issues, so things could be different when the issues have to be litigated.




Once the court certifies the class, I would not have serious concerns about non-compliance by the government.


This is the first time I have heard of this issue (offset of INCAP and VA disability compensation) so I haven't dived in and fully analyzed the issue. Given the general prohibition on dual receipt, my gut instinct was that the offset is proper. However, the positions you have described in the Op Gen and BCMR Advisory opinions suggest you may be on to a viable claim.



The above does concern me. I did not read either the Op. Gen. opinion or any TJAG opinion on this, but, I did take a quick look at 38 U.S.C. § 3104 (c). What concerns me is that this section is part of Chapter 31, Training and Rehabilitation, so not clear why that would be relevant to disability compensation issues. Would have to take a deeper dive to form an opinion.



This does seem to be very favorable to your position. Almost enough, on its own to make me think you should prevail.


Same as the previous comment. This is very strong support for your position.

The form letter denial, without any explanation, would likely be a basis for getting at least a judicially ordered remand if you were to go to court.

Did not have a chance to read the attachments. However, getting favorable advisory opinions are helpful (much better than a recommended denial).

The statute of limitations is a bright line issue. If you pass it, it deprives the court of jurisdiction (the power to hear a case). Normally, the running starts on the date that a person is entitled to compensation and later appeals to administrative boards do not stop the clock running. One thing to consider, however, is that there are "continuing claims" where a claimant may lose out on earlier that six years ago due monies, but, not on later months that still fall within the six years.

Sometimes, it is advisable to file a suit then request a stay while the agency (in this case the ABCMR) adjudicates it. This approach is actually discussed favorably in several cases and almost certainly a stay would be granted.



The fee for filing a complaint in the US Court of Federal Claims is currently $402.00. However, with attorneys fees, it can easily run into the tens of thousands of dollars or more to litigate a full case. Much depends on the complexity, volume of records, and legal issues.

I don't know that I would be fixated on filing a Class Action as determinative as to whether file suit at all or not. It seems very likely to me that what happened to you has happened to many thousands of folks over the years so a class action might be maintainable. However, a favorable judicial opinion would likely serve to help others, too.

All of that said, you might consider reaching out to National Veterans Legal Services Program, which is a non-profit that does pursue this type of litigation (they were involved with the Sabo case, though another firm actually did the bulk of the legal work in that case.)

See my above comments. There are very narrow exceptions to some SOL issues, but for the most part, no. You want to meet the SOL or risk the case being dismissed for lack of jurisdiction.

When I get a chance, I will read over the attachments. Might not be for some time. Interesting issues. I hope you win.
Thank you, I really appreciate your input, I will go over every word several times, and I will take your advice on contacting the National Veterans Legal Services Program to see if they can offer help.
 

ecs35395

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AR 135–381 Incapacitation of Reserve Component Soldiers, dated 3 January 2021, and DA PAM 135–381 Incapacitation of Reserve Component Soldiers Processing Procedures, dated 3 January 2021, were both recently released nearly five years after DoDI 1241.01, Reserve Component (RC) Line of Duty Determination for Medical and Dental Treatments and Incapacitation Pay Entitlements, dated April 19, 2016, was published addressing this very issue.

This major revision to AR 135-381 among many other things both "incorporates Army Directive 2017–17" and "implements Department of Defense Instruction 1241.01 requirements" while directly stating the following: "RC members may receive both INCAP pay and Department of Veterans Affairs (VA) benefits. VA benefits are not taxable and do not meet the definition of earned income. As a result, INCAP pay will not be offset by VA benefits received." (para 2-4(h) on page 8).
 

FloridaInjuredInCombat

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AR 135–381 Incapacitation of Reserve Component Soldiers, dated 3 January 2021, and DA PAM 135–381 Incapacitation of Reserve Component Soldiers Processing Procedures, dated 3 January 2021, were both recently released nearly five years after DoDI 1241.01, Reserve Component (RC) Line of Duty Determination for Medical and Dental Treatments and Incapacitation Pay Entitlements, dated April 19, 2016, was published addressing this very issue.

This major revision to AR 135-381 among many other things both "incorporates Army Directive 2017–17" and "implements Department of Defense Instruction 1241.01 requirements" while directly stating the following: "RC members may receive both INCAP pay and Department of Veterans Affairs (VA) benefits. VA benefits are not taxable and do not meet the definition of earned income. As a result, INCAP pay will not be offset by VA benefits received." (para 2-4(h) on page 8).
Thanks for that update on the Regs. If you go by the 1990 Army JAG finding, it ONLY took them 30+ years to get around to writing the Regulation to comply with the Law. Must be some kind of speed record :)
 

ecs35395

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Further down in AR 135-381, para 2-4(m), it states: "RC members receiving VA benefits may elect to receive either military pay or VA pay under DOD 7000.14–R, Volume 7A."

So I imagine that there will still be misinterpretation to follow by the folks who process INCAP Pay, as this passage will perhaps be cited as justification for offsetting, deducting, or recouping VA benefits from INCAP Pay in the future as well since it is basically the same passage from the previous version of AR 135-381 and has been boilerplate language in DoD 7000.14 - R, Chapter 57, regarding Waiver of Benefits for many, many years although pertaining to performance of military duty and receipt of disability benefits or retirement pay.
 

ecs35395

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Mr. Perry,

Several years ago you highlighted the Cronin v. U.S. case, which was pending appeal at the time and has since been decided. Back in 2011, your post framed the issue as follows:

"This recent case stands for the proposition that the six year statute of limitations is tolled while you are on TDRL. This means that you may be able to get to Federal Court longer than the normal six years after retirement/discharge if you were placed on TDRL."

One of the key discussions throughout the 2014 U.S. Court of Appeals, Federal Circuit, decision (No. 2013-5061) was whether the SCRA tolling provision applied to time served on the TDRL. Although the legal analysis and ruling focused on TDRL, my question is whether time spent in an INCAP Pay status is even covered under SCRA with how military service is in part defined ("any period during which a servicemember is absent from duty on account of sickness, wounds, leave, or other lawful cause."), and if so, should policy be revised so that any time spent in an INCAP Pay status be considered as time spent on active duty rather than not being counted at all?

Unless Service Members were retained, continued on, or ordered back to active duty under 10 U.S.C. 12301(h) as outlined in both DoDI 1241.2 (2001) and DoDI 1241.01 (2016), time spent in an INCAP Pay status does not appear to have anywhere near as many legal protections and overall benefit as actual time spent on AD orders other than receiving some basic level of Military worker's compensation. Is there any existing remedy besides ABCMR or the federal courts for the likely many RC Members who have been denied AD orders for LOD and/or IDES processing over the past several years at the discretion of their states, NGB, and Army HRC when instead being provided with INCAP Pay status while policy revisions have taken more than a decade to arrive following the creation of a Recovering Warrior Task Force (RWTF) specifically tasked with resolving this specific issue among many others?
 

FloridaInjuredInCombat

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Further down in AR 135-381, para 2-4(m), it states: "RC members receiving VA benefits may elect to receive either military pay or VA pay under DOD 7000.14–R, Volume 7A."

So I imagine that there will still be misinterpretation to follow by the folks who process INCAP Pay, as this passage will perhaps be cited as justification for offsetting, deducting, or recouping VA benefits from INCAP Pay in the future as well since it is basically the same passage from the previous version of AR 135-381 and has been boilerplate language in DoD 7000.14 - R, Chapter 57, regarding Waiver of Benefits for many, many years although pertaining to performance of military duty and receipt of disability benefits or retirement pay.
The new AR 135-381 is a bit confusing, and might have been intentionally written that way...
2-4, part 2, paragraphs (h) and (m)

h. RC members may receive both INCAP pay and Department of Veterans Affairs (VA) benefits. VA benefits are not
taxable and do not meet the definition of earned income. As a result, INCAP pay will not be offset by VA benefits received.

m. RC members receiving VA benefits may elect to receive either military pay or VA pay under DOD 7000.14–R,
Volume 7A.

There's over 1000 pages in DoD 7000.14-R, but searching over it I've yet to find anything that contradicts Concurrent Payment of both INCAP pay and VA Disability Benefits. The thing is, INCAP is NOT considered Active Duty Pay "37 U.S.C. § 204(g), (h) and (i) are made at a time when reservists are no longer in an "active duty" status and do not otherwise represent "active service pay." [quoted from a VA Legal Counsel opinion, circa 1990]. INCAP pay (from what I've found so far) isn't even mentioned in DoD 7000.14-R.

Boiling it down...

Rule (A), A service member can NOT receive Active Duty Pay and VA Disability Pay at the same time... according to the Law.
Rule (B), A RC member receiving INCAP must have "Earned Income" deducted from any INCAP pay they receive.

But here's where the wheels fall of the bus for the Recoupment actions...

INCAP pay is NOT Active Duty Pay... and does NOT fall under rule (A),
and VA Disability benefits are NOT "Earned Income"... and do NOT fall under rule (B).

So for Recoupment to be done Legally, the Law [37 U.S.C. § 204] must be changed to include INCAP pay along with Active Duty pay for rule (A) to apply, since I don't think there's a path (nor should there be) to start counting VA Disability Benefits "Earned Income".
 
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