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.
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.