WAANG Incap Pay, JAG, VA... "We dont use that part of the Reg"

[wawarvet]

Hello from Washington State,

I thought its about time that I become active with the forum (you guys are great) and report on my struggles with incap pay. Using information I obtained from this board, I was getting traction in getting incap started... well that is until I hit the JAG roadblock... I could really uses some advice.

I'll give you some background info. I was medivac'ed from Iraq in spring of 2009 for multiple hernias and an infection in my intestines. Attached to WWB and had surgery in June of 2009. A section of my intestines was removed and one of two hernias repaired (second repaired by VA in 2012). Released from active duty and went back to my Guard unit in Sep of 2009. I was put in VA care at same time. I was on temp profile after temp. My health continued to decline. I filed a VA claim in early 2010. I was not able to work civilian side but I did attend drill as I was able. End of 2012, the unit doctor and my company commander brought me aside and told me that I would no longer attend drill because of my health problems. Commander issued me a memo excusing me from past and future drills until my medical status is determined. Unit dr told me I was being referred MEB. Not what I wanted but no choice in the matter.

I did regular checks on MEB status but basically told to be patient. In March of 2012, I learned my unit and MEDCOM had lost all records pertaining to MEB and over 1000 hard copied pages of medical records. Also learned that no LODs had been initiated.

End of May 2012 got my VA rating. 80% scheduler and 100% T&P UI. That in itself is a long story...

Through this board, I learned about incapacity pay. Read the regulation and felt I qualified. I filed a memo with my commander requesting LODs and incap pay. He was ok with it so he signed the incap paperwork and initiated the LODs. I requested a formal LOD investigation as required by Regs. It was finished in November of 2013 with the investigating officer's findings of all my health issues were incurred or aggravated by service that was in the line of duty.

Here is the sticky part. I had the DA Form 7574-1 Military Physician Statement of Soldiers Incapacitation/Fitness for duty filled out by my VA doctor. She indicated I was unfit for military duty. It states in the instructions of the form that VA doctors are authorized to fill out the form as a government doctor. The DA PAM 135-381 details the submission procedures with the same instructions in filling out this form.

My packet is stuck on the desk of our HHS at G1. He has told me from the beginning I do not qualify for incap. First he said there was no money in the budget. Then he said since you get VA disability, you dont get incap. We have since butted heads when I proved him wrong. Now he got a JAG officer to state I was am not eligible for incap because I submitted insufficient paperwork from a "qualified military physician" that indicates I am unfit for duty. Then she quoted 3-9 of the AR 135-381 (no such section) basically saying that it must be a government physician who makes the determination of fitness. She contradicts herself but the point is, she says I am not eligible and because of this, the HHS will not process my packet. 7 months have past since I first applied.

Any advice on how I can get someone to read the damn PAM would be great...

Thanks all

 

[bobby_0081]

Get the medical form re done by a physician in your unit or a doctor at an AD base since you have an LOD you are entitled to treatment in an AD facility for injuries covered by the LOD. Then you will have satisfied their requirements. The other options are to start an IG investigation or a Congressional Inquiry in to your situation. My opinion is if they are making things hard on you now that an IG complaint or a Congressional will only make things worse. Play their game and get what you want and need. This is what I would.

Best of luck,

Bobby

 

[gsfowler]

Go to the press on this one, start with the reporters closest to your NG Unit. Once you have alerted the press, then file a congressional.

I think you should let the Commander hang over this.

You should have been brought back into the WTU on MRP2 orders, since your initial injury was GWOT.

MRP2 applies to RC Soldiers with unresolved mobilization connected medical condition(s) that either was not identified or did not reach optimal medical benefit prior to their Return From Active Duty (REFRAD). Medical condition(s) must have occurred while mobilized under 10 USC 12301 (d) and 12302 partial mobilization orders for operations in support of Overseas Contingency Operation (OCO).

 

[wawarvet]

Ok, an update. I have met with JAG and it looks like they are accepting the VA doctor signing off on unfit for military duty. I also have an incap board set for the 20th of Feb. I have been told of late that there could be a problem with my profile as it only addresses one item that makes me unfit and it is a minor one. Its not one that makes me eligible for incap. So I have wrote another letter addressing the fact that I never had a fitness for duty exam through the military and that they have had ample time to conduct one. I detailed my medical issues and how they affect my life. I also pointed out that right or wrong my commander did not let me drill for the past 14 months nor did he ever inform me of incap pay. I also pointed out the AR 635-40 that says all medical conditions must be considered when evaluating fitness for duty. I have a memo stating the outcome of a formal LODI listing the major health problems as line of duty. I also pointed out that all medical records and statements from the soldier must be considered by the board. I tried to be nice and respectful so that I was not bumping heads... Yes I have a bit of a tendency to do that.

Thanks for the advice guys. I greatly appreciate it.

I will keep you guys posted.