B-257885 January 25, 1995

B-257885: Jan 25, 1995

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Flowers: This is in response to your letter of July 5. She received a disability rating of 20 percent upon her discharge and was eligible for disability severance pay. 800 that first month should have been the basis for the computation of her military compensation. A member who is injured while performing inactive-duty training is entitled to incapacitation pay in certain circumstances. The amount of pay is determined on the basis of demonstrated loss of income from nonmilitary employment. We have reviewed the records and documents in the matter and find the Army's determination of the amount of Ms. Quintana's incapacitation pay to have been reasonable. 800 as a real estate appraiser was based on a projection of how many appraisals she would perform in a month and was not supported by canceled checks from her employer and was too uncertain to base the calculation of incapacitation pay required by Army Regulation 135-381.

B-257885 January 25, 1995

(no digest)

R.R. Flowers, Jr. Faiffield, Farrow & Strotz, P.C. 2632 Mesilia Street Northeast Albuquerque, NM 87110

Dear Mr. Flowers:

This is in response to your letter of July 5, 1994, on behalf of Loretta Quintana regarding her entitlement to additional incapacitation pay incident to her service in the New Mexico Army National Guard.

In July 1988, Ms. Quintana injured her right knee in a fall during Inactive Duty Training. She had previously injured the knee in 1987 in an accident unrelated to military service. In January 1989, she had surgery on the knee at Kirtland Air Force Base, New Mexico, which you contend aggravated the injury.

Ms. Quintana received incapacitation pay in the amount of $628.29 per month from July 11, 1988, through December 17,1991, the date of her discharge. She received a disability rating of 20 percent upon her discharge and was eligible for disability severance pay.

Ms. Quintana claims additional incapacitation pay on the basis that she had just started a new position and that her pay of $1,800 that first month should have been the basis for the computation of her military compensation.

Under 37 U.S.C. 204, a member who is injured while performing inactive-duty training is entitled to incapacitation pay in certain circumstances. The amount of pay is determined on the basis of demonstrated loss of income from nonmilitary employment, not to exceed the pay and allowances of a member of a regular component of corresponding grade and length of service. Incapacitation pay may be paid for only 6 months; however, the Secretary concerned may extend this period in the interests of fairness and equity. We have reviewed the records and documents in the matter and find the Army's determination of the amount of Ms. Quintana's incapacitation pay to have been reasonable. The Army arrived at $628.29 per month by averaging her earned monthly income as reflected by her submitted income tax returns from 1985 through 1988.

The Army determined that the monthly pay of $1,800 as a real estate appraiser was based on a projection of how many appraisals she would perform in a month and was not supported by canceled checks from her employer and was too uncertain to base the calculation of incapacitation pay required by Army Regulation 135-381. We see no reason to object to this reasoning. Accordingly, the claim may not be allowed.