Sudden stop of Incap Pay...Fit for (light) Duty???

Aaron Munson

PEB Forum Regular Member
Registered Member
Oh where to start...I'm a Air Natl Guard Airman, and I was injured my back while performing some mechanic work on a jet on 4 Feb 2011. My med group didn't even get my LOD paperwork rolling until around August 2011, so despite continuous pain I wasn't able to receive medical treatment except out of pocket. Around the end of 2011, it came up that I should be eligible for Incap pay, though nobody knew much about it. I went through all the channels, and even did some research just to get my Med Group, MPF, supervisors, etc up to speed. I've been on Incap pay since, and have continued to go to physical therapy and have continuing appointments at a phenomenal state hospital that works specifically with acute pain conditions. I still have a great amount of pain everyday though through a potential upcoming procedure in a few months hope for full relief. My restrictions from my primary care doctor states 'no repetitive motions, no standing >10min, no sitting >10 min, no strenuous activity, no lifting >10lbs, and these restrictions have been in effect since the beginning and reevaluated every 30 days, which I report to my Med Group during drill weekends.

About 10 days ago I recieved an e-mail from my commander who stated that because of procedures in place, he had to evaluate my condition based on what sounded like was a 1-2-3 scale. 1-fit for duty, 2-able to do undefined light duty, or 3-still unfit for duty. He called over to one of the doctors that I check in with during drills who apparently told him that yes, I do have restrictions, but perhaps a little light duty wouldn't be bad for me, as long as it's within my restrictions. My commander wrote that because of this he checked 'box 2', which states that I'm able to do light-duty. However, when I went to claim my Incap pay for the first part of this month I was told it will only be paid through the 7th, because that's when my commander wrote the letter stating I was able to do light duty, unless I can prove a loss of civilian income, which I'm unable to do because prior to my injury I was working at the base on ST-title 32 days for about the last 1 1/2yr. ALL information I can find that references Incap pay seems to state that 'the member should be on Incap pay until able to fully perform military duties, or until finalized in DES, none of which have occurred. I'm not quite sure where to go from here. Everytime I ask someone about this 'new' procedure change, they state that it's new, but nobody has any documentation or firm references on it, yet they seem to follow it like it's the Bible. The documentation that I can find specifically refers to ANGI 36-3001 & DODI Number 1240.2, but that's it, so I'm not sure what they're talking about, nor do I think they even know. I have had a IPEB done I believe, but haven't heard back, nor have I been presented with the NARSUM. Do anybody have any possible answers/feedback to this change?
 

klamsnacks

PEB Forum Regular Member
PEB Forum Veteran
Get a Laywer, seriously - or if you have counsel there on post somewhere - go show them what you can find and tell them hey "everyone" else is quoting this or that but no one know's what this source of the new rule or law is. So based on your facts and what the rules you quoted are - I think you should receive your incap pay until the board has comeback and you've replied with your decision. Or if it goes further, then it goes on further, all the while you get paid till you have a military discharge or what not telling you otherwise.

Sounds very similar to my case as far as command BS or unwillingness to help, and just cut the fat. They don't want you to get anything else, cause they think you can now work, even if it's 4 hr duty days, as like mine was or the sitting and standing lifting clauses, I had the same as you. My command just didn't know how to interpret that, so they wouldn't help me at all. Good luck, and make em be right, if you know you're, then they must own up to it and if they don't then you got em by the b...s!

Keep us posted!
-Scott
 

pittpan2005

PEB Forum Regular Member
PEB Forum Veteran
Apparently they are using a "unofficial" and modified copy of the regulations. Someone posted it recently and it was a "working" copy, but that base was using it as gospel.

The ANG seems to be playing this game with many.

One idea I have, besides Klam's idea of contacting a JAG (definitely do that), would be to have a Congressional Inquiry completed on your behalf. However, you need to ask specific questions that you would like addressed. I would make sure to have the Congressman's office ask a few questions similar to this:
1. Are ANGI 36-3001 & DODI Number 1240.2 currently active.
2. Have either of these regulations and orders been supplemented and if so can you please provide a copy or source of the changes.
3. Under what authority are you being denied Incap pay?

Also, I have a FOIA template that you can plug in info and send off if you'd like it. Someone provided me a nice copy recently that can be modified for both state level inquiries and federal inquiries.

Just my two cents.
 

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Aaron Munson

PEB Forum Regular Member
Registered Member
I received the letter that my commander wrote that puts me on 'light-duty', which according to him is considered 'fit-for-duty with restrictions', which apparently is what is terminating my Incap Pay, and he feels that because I'm able to do light duty I can just stay at a desk and do paperwork or answer phones. Attached is the letter, which seems worthless at best because it doesn't even contain any supporting documentation, or references.

I did also speak to the McChord AFB JAG office and explained the situation, and was told that it definitely sounds like an issue that needs to be followed up on, however, though JAG will support in any way they can, he suggested that I file an IG complaint because it would fall more in their territory and start an immediate inquiry. Additionally, I do plan to file an Congressional Inquiry letter and file an FOIA at my base level as well. Who knows, maybe when my command staff starts getting questioned from 4 different angles, they'll have better answers than...'because of the new policy change...' which they can't even reference. :)
 

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ranger2992

PEB Forum Regular Member
PEB Forum Veteran
I understand what you are saying about the letter. Hopefully you read throught he thread link I posted and get something from it. There were a lot of great references posted in there. I could see how it could be helpful for you to have that material to start your battle. Good luck.
 

Aaron Munson

PEB Forum Regular Member
Registered Member
I understand what you are saying about the letter. Hopefully you read throught he thread link I posted and get something from it. There were a lot of great references posted in there. I could see how it could be helpful for you to have that material to start your battle. Good luck.
Abosolutely, I'm following that thread as closely as this one.

I did have a question, though it's probably subjective... Does the AF/ANG have a definition for 'Light-Duty'? I know I have back pain, though my commander seems to want me on light duty, which I assume means answering phones, etc. I mean, as long as my arm isn't broken I can answer a phone. Anyone can, but does that really justify a 'light duty' recommendation? If I remember reading ANGI 36-3001 (the old and apparent out of date version) I thought it talks about being on Incap pay until fully fit for duty, or finalized in DES. My interpretation of fully fit for duty, excludes light-duty phone answering.
 

Ruptured Duck

Moderator
PEB Forum Veteran
The ANG plays this game all the time to kick people out. Now that you are off incap they will start the discharge process to get you out with no MEB. ANGI 36-3001 is void.

What pertains to you is DoDI 1241.2
 

Aaron Munson

PEB Forum Regular Member
Registered Member
That's not the first time that I've heard that ANGI 36-3001 (1996 version) is no longer valid, but nobody has any substantiating information that shows that it's been superseded, or void/outdated all together, and it still shows active under e-publishing.af.mil Thus I'm very confused. Though, I won't disagree with you for a moment that they're trying to play a game to get me out without an MEB and so I'm not their problem anymore.

One of the places that I'm running into an issue is in DoDI 1241.2, differentiating between whether I'm considered as a "Member Unable to Perform Military Duties" as stated under section 6.2.1.1, or a "Member Able to Perform Military Duties" as stated under section 6.2.1.2. I'm a fighter jet mechanic...my whole job consists of bending over, lifting, standing long periods, etc, with exception to sitting down to do paperwork or answering the phones in passing in the office. My commander and med group seem to think that because my restrictions don't limit answer phones, etc, that then I am able to be put on 'light-duty' status and therefore ABLE to perform military duties. However, this is where I would disagree. I can barely even sit in the car long enough to make the drive to work without experiencing extreme pain.

Both of these references state being 'able to perform military duties, as determined by the Secretary concerned', but don't make a reference as to what would make those determinations. Thus my frustration.

What makes me even more confused is that under section 6.3.1 it states that Healthcare will be provided until the member is found fit for duty, or processed through DES. So under that same "fit for duty" category that they want to classify me under, it would also seem to mean that they now will not provide further healthcare. Which makes me feel even stronger that they're classifying me wrongly.
 

Ruptured Duck

Moderator
PEB Forum Veteran
You got a problem my man...I just read the BS letter from your CO and missed the 469. It appears that they are saying you have a "non-duty" condition and they are processing you for discharge for an "unfitting condition" without entering you into the IDES. "Member has been identified with a "Non-Duty" (sic) physical disqualification that must be processed through the Non Duty Disability Evaluation System (sic) to continue his/her military service."

Where's your LOD? Were you on orders when this "event" happened? I'm not sure what's going on here and whatn they are trying to do...
 

Aaron Munson

PEB Forum Regular Member
Registered Member
You got a problem my man...I just read the BS letter from your CO and missed the 469. It appears that they are saying you have a "non-duty" condition and they are processing you for discharge for an "unfitting condition" without entering you into the IDES. "Member has been identified with a "Non-Duty" (sic) physical disqualification that must be processed through the Non Duty Disability Evaluation System (sic) to continue his/her military service."

Where's your LOD? Were you on orders when this "event" happened? I'm not sure what's going on here and whatn they are trying to do...
Gotta love it. The 'non-duty' condition they are referring to is a diagnosis of depression, which is associated to my back pain, which is the real issue. The back pain, I do have an LOD for. According to my flight doc on base, even though in the civilian world, doctors can and do make the sometimes obvious association of depression due to a chronic condition such as this particular back pain, the military doesn't recognize that these two conditions are related. He stated that tons of people in the military have depression, and they fight the diagnoses and proceed with their work just fine. But that I would have to make this election at MPF. I went to MPF, which gave me two options, since it was still considered non-duty, of either fighting it, or voluntarily separating. I of course chose to fight it. However, last week when I checked in with my flight doc he said Congrats, because they ended up blending both of the issues into my current MEB process. Which sounded fine at the time, but now that makes me wonder if it's just another way for them to suggest discharge. I'm overly confused, regardless.

The only/last thing I've heard regarding an MEB, which is/was WAYYY overdue anyways, is when I went to McChord AFB, for what I was told was to talk to a doc about my condition, which really was an exam to prep a NARSUM. The doc pushed me beyond my limits in terms of bending too far forward and I was in bed for about the next 7 days because they pain was so bad, I couldn't function even a little normal. Anyways, when I got back, this is when I was told that it the appt was for a NARSUM. This was back in....Oct timeframe....and I haven't heard heard or signed anything since. I just check in once a month as required under Incap on base. My understanding after reading this forum is that when a NARSUM is completed, I am required to sign it, stating I agree or disagree with the findings...of which I'm certain I already know my answer. However, should I be overly concerned that my med group hasn't presented me with a NARSUM to sign, or any MEB status for several months? My med group has been so detrimental and horrible about doing their jobs and keeping me informed, that I'm certain it will somehow contribute to destroying my case, or missing MEB deadlines.

And to answer your questions, yes I was inactive duty for training orders, for 5 days during the week I was injured and was determined that the injury IS in LOD. As for my Incap...the regs state, which apparently they're now following that if I'm "fit for duty" even light duty apparently, then in order to stay on Incap, I must prove lost civilian wages. Which I'm unable do. About 1- 1 1/2 yrs prior to my injury, I quit my civilian job, and had been on ST-days/Title 32 orders at the base full time since. So it would appear because I quit my job and worked full time at the base, that I essentially screwed myself for being such a devoted worker-bee. Therefore, no way to prove lost civ income. Gotta love it.....
 

Ed Mercanti

PEB Forum Regular Member
PEB Forum Veteran
Registered Member
Normal military duties, the criteria for incap pay, is generally considered the ability to perform your duties within profile limitations. This appears to be what your command used in terminating your incap pay. However, this deffinition is "fuzzy" at best and probably could be successfully argued by pointing out you aren't deployable. But it isn't a "give me."
 

Ruptured Duck

Moderator
PEB Forum Veteran
I sent you a message. I need to see your AF 348 for the back and anything else you might have. What they are doing is playing a word game" in order to terminate your incap. They have been doing it for years and I know who is doing it.
 

Aaron Munson

PEB Forum Regular Member
Registered Member
For all those concerned about the new 'draft' version of angi 36-3001, I received the updated version and attached it below. I've also attached the memo that states that the new draft should be followed, though if I read it right, the time period has expired, so I'm not sure how that's handled....
 

Attachments

Ruptured Duck

Moderator
PEB Forum Veteran
1st problem: The memo is dated 15 Dec 2007 and expired 180 days later....

2nd problem: In the memo "they" state the memo prevails other Air Force instructions...this is incorrect.

United States Code (USC) is the LAW. This is known as primary law. (1)

DoD Directives/Instructions are secondary law. (2)

AFI's are tertiary law (3)

ANGI's do not over ride any of the three when in conflict with the others.
 
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