2.  The applicant requests, in effect, that his records be corrected to reflect entitlement to incapacitation pay, payment of incurred medical expenses and disability retirement.  He notes he was injured in an automobile accident “on [his] way home from drill” and was denied the opportunity to reenlist because of his medical condition.  He states he contacted his Reserve unit on 11 August 1992 and requested “payment for his medical bills, time off from work and authorization to see a military physician.”  He states he had to pay his medical expenses “from a settlement from [an] insurance company....”

3.  Records indicate he was a member of the Army Reserve and on 18 December 1990 reenlisted for a period of 3 years.  His unit was located in Arkadelphia, Arkansas.  

4.  At 1615 hours on 9 August 1992, while enroute to his residence in Hot Springs, Arkansas, he was involved in a motor vehicle accident.  At the time of the accident the applicant was in a travel status following release from his weekend drill (IDT-inactive duty training).  He was able to drive his vehicle to his mother’s house in Hot Springs and from there was taken to the emergency room at St. Joseph’s Regional Hospital where he was treated and released.  A line of duty investigation, which was not completed until 1994, found the applicant’s injuries occurred in the line of duty.

5.  According to medical statements from a medical association in Dallas, Texas the applicant sought non-emergency medical treatment for injuries resulting from his motor vehicle accident on 17 August, 28 August, 14 October and 9 November 1992.  He also received non-emergency medical treatment from the Entralplex Rehabilitation Corporation in Dallas, Texas in September, October and November 1992.

6.  The applicant received an annual NCO performance evaluation report in November 1992 and November 1993.  The November 1992 report reflected completion of a physical training (PT) test prior to his accident while the November 1993 report noted the applicant had a profile prohibiting completion of the annual PT test.

7.  On 17 December 1993, at the expiration of his 3 year contract, the applicant was released from his Reserve unit and on 13 January 1994 was honorably discharge from the Army Reserve.

8.  In March 1994 the applicant’s initial VA disability claim was denied.  He appealed the decision and ultimately was granted a combined 30 percent disability rating effective 28 March 1994 for residuals of the vehicle accident.  Subsequent appeals resulted in an increased combined disability rating of 40 percent retroactive to 28 November 1994.

9.  Army Regulation 135-381 establishes the policies and procedures for entitlement to health care, incapacitation compensation and death benefits for injury, disease, or illness incurred, contracted, or aggravated while traveling to or from IDT.  It notes that travel must be direct and completed within a reasonable amount of time.  Evidence indicates the applicant was released from IDT at approximately 1530 hours on 9 August 1992.  

10.  It notes reimbursement for emergency treatment, such as that provided by paramedics to save the life, limb, or eyesight of a Reserve Component, obtained from civilian medical facilities is authorized. However, reimbursement for nonemergency care furnished by a private hospital, clinic, dentist, physician, nurse or other authorized health care provider is not authorized unless prior written approval is obtained in advance from appropriate authorities Reserve Component commanders a strictly prohibited from authorizing nonemergency care by civilian health care providers regardless of the line of duty status.

11.  Section 204, title 37, United States Code provides authority for continuation of pay and allowances under certain circumstance to soldiers who are disabled in the line of duty from injury, illness, or disease incurred or aggravated while in a duty or travel status.  Prerequisites for entitlement to incapacitation pay are inability to perform normal military duties or satisfactory demonstration of loss of nonmilitary earned income.  A soldier disabled on or after 30 September 1988 who is determined unable to perform normal military duties may receive full military pay and allowances.  However, if a soldier in this category continues to receive income from non-military sources, this income will be deducted from the incapacitation pay entitlement.  If a soldier can perform normal military duties, but loses nonmilitary income for an injury, illness, or disease incurred or aggravated on or after 30 September 1988, the soldier is entitled upon request, to a portion of pay and allowance.  It would be an amount equal to lost civilian earned income or full pay and allowances, whichever is less.  Incapacitation pay may be paid for up to a maximum of 6 months.  Only the most meritorious request will be approved for payment beyond the 6 months limits and then only with the approval of the Secretary of the Army.

12.  Army Regulation 635-40, which established the policies and provisions for entitlement to disability separation or retirement, states that Reserve Component soldiers who incur injuries while in a travel status to or from IDT are not eligible for referral into the disability system and as such are not eligible for disability separation or retirement.

13.  In the processing of this application an advisory opinion (COPY ATTACHED) was provided by the Office of the Deputy Chief of Staff for Personnel.  The opinion concluded the applicant should be granted “incapacitation compensation for the six month period beginning 10 August 1992....”

CONCLUSIONS:

1.  The evidence confirms the applicant was injured as a result of a motor vehicle accident while in a travel status following release from (IDT).

2.  While his initial medical care on the day of the accident could be considered emergency in nature and as such reimbursable, his follow-up treatment by civilian health care officials in Dallas, Texas was clearly of a non-emergency nature and would not have been authorized for reimbursement.

3.  The applicant was eligible for incapacitation pay.  In view of the length of time which has elapsed since the accident it would be unlikely that his unit would be able to certify he was unable to perform normal military duties subsequent to the accident.  However, the Board accepts the fact that the applicant’s physical profile prohibiting participation in physical training, which was in place as late as November 1993, is sufficient evidence that he was unable to perform those duties.  As such the applicant should be awarded incapacitation pay subject to the deduction of any nonmilitary income.

4.  Notwithstanding the fact that there is no evidence to support the applicant’s contention that his injuries prevented him from continuing his military career, because the injuries occurred while he was in a travel status he would not have been eligible for disability processing.

5.  In view of the foregoing, it would be appropriate to correct the applicant’s records as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected:

	a.  by reimbursing the applicant for emergency medical care provided at St. Joseph’s Regional Health Center on 9 August 1992; and

	b.  by awarding the applicant incapacitation pay for 180 days beginning 10 August 1992 subject to deduction of any income from nonmilitary sources.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

                       GRANT AS STATED IN RECOMMENDATION

                       GRANT FORMAL HEARING

                       DENY APPLICATION




		                           
		        CHAIRPERSON