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Incap And Va Pay At The Same Time With No Offset

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#1 jack81mm


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Posted 16 April 2012 - 01:21 PM

Current guard soldier here not attending drills due to service connected injuries and awaiting a MEB. Anyone have any experience receiving INCAP and VA at the same time for injuries with approved LOD? Ar 135-81 state one cannot receive both for the SAME condition. MOST regs like 37 usc sec 204 g, h and i, m21 -1mr pt III sub v. CH 4 sec C 11.b and DOD vol 7a CH 57 dont state anything about draw both but The earned income is subtracted from INCAP. Period. VA is not considered earned income, right? VA even states in VAOPGCPREC 10-90 Incap and VA that each is considered different pays but either DOD or DFAS is ignoring this.

Anyone also receiving both but for different conditions? And if so, how did you go about this? Seems if you had more than one condition that prevents you from working and had approved LODs on both you would apply for INCAP for the condition you are not currently being rated for by the VA so as to draw both INCAP and VA. Make sense? DoD is not accepting their own regs and subtracting VA pay from the INCAP.

Need all available experiences.




#2 Chuck75


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Posted 20 April 2012 - 10:41 AM

You can bet your bippy that the government will reduce liability when the laws don't specifically prevent them from doing so.



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Posted 20 April 2012 - 04:05 PM

Going through the same thing too. Check this out
http://states.ng.mil...Issue 4 (Oct 08).pdf



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Posted 20 April 2012 - 04:06 PM

You need to copy the whole link.

Incapacitation (incap) pay is pay and allowances that a member of a reserve component is entitled to,
whenever the member is physically disabled as the result of an injury, illness, or disease incurred or aggravated in
the line of duty while on active duty or inactive duty training status. It is the Guard member’s responsibility to initiate
an incap pay claim. Guard and Reserve Members can receive payments for up to six months but may be extended
in special cases. However, these benefits are offset by any nonmilitary earned income (such as pay from
an employer) received concurrently with the military disability pay.
Does incap pay affect VA disability compensation? The short answer is no because VA disability compensation
is not considered earned income. The VA’s Office of General Counsel addressed the question of whether
VA should withhold compensation payments while members receive incap pay in April 1990 and decided that
there is no prohibition against receiving incap pay and VA disability compensation at the same time. The National
Guard Bureau’s Judge Advocate General’s office agrees that incap pay and VA disability pay can both be paid simultaneously.

#5 jack81mm


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Posted 30 April 2012 - 11:24 AM


Please post your link again. It wasnt a good link and says not found. THX.

Also do you have POC for NGB Judge Advocate office referring to both VA and INCAP pay.

Last week I spoke with 2 different people at NGB that claim to process INCAP. They both stated cant receive both and they go by 135-381 and nothing else. Regards to different injuries on VA and INCAP they both also stated that INCAP is decided on a case by case basis. Obviously they didnt want to give out any info. They want to prevent anyone from using this reg against them.

Please advise.