MEMORANDUM OF CONSIDERATION


	IN THE CASE OF:   
	

	BOARD DATE:         22 October 1998      
	DOCKET NUMBER:   AC96-06417

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.  The following members, a quorum, were present:


Ms.
June Hajjar

Chairperson

Mr.
Fred K. McCoy

Member

Ms.
Shirley L. Powell

Member

	Also present, without vote, were:


Mr.
Loren G. Harrell

Director

Mr.
Kenneth Aucock

Analyst


	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records
	Exhibit B - Military Personnel Records (including advisory opinion, 
	             if any)

APPLICANT REQUESTS:  Incapacitation pay.  

APPLICANT STATES:  That he is a Staff Sergeant and has been a member of the Army Reserve since 1982, and except for the date of discovery recorded on his application, the factual recitations and averments made by his attorney on his behalf are essentially true and correct.

COUNSEL CONTENDS:  That the applicant’s line of duty injury made him eligible for incapacitation pay for the full period of his incapacitation, notwithstanding his limited ability to perform some or light duty during that period; that the Army’s reasons for denying his incapacitation are factually or interpretationally erroneous, and should be corrected; and that the Army’s counterclaims against the applicant for an alleged overpayment and for unauthorized military medical care, are insubstantial and erroneous, and should also be corrected.  Counsel submits a 51 page brief with 37 exhibits  (ATTACHED).

Counsel claims that a DA DCSPER 5 November 1992 memorandum denying the applicant incapacitation pay was erroneous, that the medical profile the applicant received on 11 August 1989 was erroneous, and other records contained in the applicant’s file were erroneous. 

Counsel states that the applicant suffered a broken ankle and a wrenched knee (“torn meniscus) during a parachute jump at Davis Field, Muskogee, Oklahoma, with his unit, Headquarters and Headquarters Detachment, 2nd Battalion, 
12th Special Forces Group(Airborne) on 23 February 1986.  He was treated at Muskogee Regional Hospital, a near-by civilian facility.

Counsel states that the broken ankle was readily apparent, however, because his leg was immobilized, his knee injury was not recognized immediately.  Counsel provides a copy of a medical report from the Muskogee General Hospital, which shows a 28 February entry indicating the applicant had pain in his right knee, and also a medical report (3 November 1986?) indicating a knee problem.

Counsel states that the applicant received follow on treatment for his broken ankle at Reynolds Army Hospital at Fort Sill, Oklahoma, but problems were encountered in his requests for treatment of his knee, in that someone at the hospital did not believe that his knee had been injured during the parachute jump.  He was eventually scheduled for surgery on his right knee on 
20 December 1986, however, that surgery was canceled because the 
24 February 1986 line of duty (LOD) report (DA Form 2173, Statement of Medical Examination and Line of Duty Status), completed by a civilian physician, Dr. Fred Ruefer, and approved by his commanding officer, LTC John H. Jackson, as being in LOD did not mention his wrenched knee.

On 30 November 1987 a new LOD was prepared, signed by the applicant’s  new commanding officer, Major Kenneth J. Bray, and also by the applicant’s original attending physician, Dr. Ruefer, at Muskogee Regional Hospital.  This LOD indicates the applicant injured his right knee.  Notwithstanding the information contained in second LOD, the applicant eventually filed suit in Federal court, after retaining counsel to obtain incapacitation pay for the period of his broken ankle’s convalescence, to compel treatment for his wrenched knee.

Consequently, a formal LOD investigation was conducted and the investigating officer concluded that the applicant had indeed injured his knee in the aforementioned parachute jump.  Counsel states that the same doctor, Major John E. Morrissey,  who had examined the applicant on 19 November 1987 had again examined the applicant on 20 November 1989 at Fort Sill, Oklahoma, concluding again that the applicant had suffered a torn meniscus, however, he could not confirm that the injury had been suffered in the jump of 
23 February 1986. 

Counsel states that under the “prodding” of the lawsuit, the Army finally provided surgery on his knee on 19 March 1990, making the lawsuit moot.

Counsel states that the injuries suffered by the applicant occurred before the effective date of Public Law 99-661, which amended 37 U.S.C. 204(h) concerning incapacitation (“incap”) pay.  The then existing version of that law provided for full active duty pay and allowances for the period beginning with the injury and extended until the Reservist had recovered sufficiently so that he could perform “normal military duties”, not “some” or “light” duties, but those duties required for his MOS (military occupational specialty) in his unit’s TOE (Table of Organization and Equipment), or modification TOE (MTOE).  The applicant was a special forces engineer (MOS 183C0) and since his duties included parachuting, the period during which, because of his knee injury, he could not perform “his normal military duties”, to include jump duties, was in fact incapacitating from 23 February 1986, the day of his injury, to 30 April 1990, the day he was restored to jump status, even though he did perform light duty during that period, but could not perform his MOS-required duties.

Once the medical care in kind was provided and the applicant recovered to the extent of being able to jump again, he thereafter applied for “incap” pay for his four-year period of incapacity (minus such period that he had already been paid incap pay for his broken ankle, and the pay for weekend drills (IDT) and short tours (ADT).  His battalion commander, a special forces officer and also a lawyer, stated in effect, that the applicant was incapable, because of his knee injury, to perform parachuting duties during the period in question, and that parachuting is a required element of his “normal” military duties in his unit. 

Counsel states that the applicant seeks correction of errors contained in the DA DCSPER memorandum of 5 November 1992, which includes a number of misstatements of fact in denying the applicant relief, and also errors of interpretation.  The applicant requests “incap” pay erroneously denied him by the DA DCSPER.  He also requests correction of his erroneous “picket fence” 
(1 1 1 1 1 1) medical profile of 11 August 1989, which has since been repudiated and retracted as erroneous by the same doctor, CPT L. E. Nickerson, USAR, who signed that profile.  That doctor, in 1994, corrected the profile to 
read 1 1 T3 1 1 1.

Counsel provides information from Comptroller General decisions which state in effect that that official had reviewed previous Comptroller General decisions, which state that entitlement to disability pay and allowances terminate when the member recovers sufficiently to perform his military duties.  The Comptroller General then ruled that the mere performance of some military duty, falling short of the Reservist’s own normal duty, would not be a disqualification to drawing “incap” pay, thereby overruling prior decisions to the contrary.  Counsel quotes from various Comptroller General decisions, which in effect states that a Reservist is entitled to full pay and allowances (“incap” pay), to include hazardous duty pay (at least for the first three months following the injury), (notwithstanding the fact that the Reservist was incapable of performing his hazardous duty), until he could perform his normal military duties.

Counsel goes on to describe the duties and tasks required of his MOS, states that while he may have performed some duties at his unit, those were not his normal military duties and taking into consideration the Comptroller General decisions, he is entitled to “incap” pay for the period during which his knee injury prevented him from making military parachute jumps, and performing the other duties of a special forces engineer.  The applicant was not reclassified and his wrenched knee with a profile of TL3 precluded him from performing his MOS duties.

Counsel states that the DA DCSPER in approving the applicant’s entitlement to some “incap” pay (for 42 days from 19 March 1990 to 30 April 1990, from the time of his knee operation until his surgical convalescence ended), nevertheless found that he had aggravated previous knee injuries.  Counsel states that “incap” pay was not restricted to injuries; line-of-duty aggravations of pre-existing injuries counted.

Counsel takes umbrage with DA DCSPER reasons for denying the applicant ”incap”, i.e., the applicant had drawn jump pay during his period of incapacitation and had been on hazardous duty orders since late 1987, that he had performed considerable military duties during the four year period, to include special forces training overseas, that he had provided no documentation of medical incapacitation prior to his 19 March 1990 surgery, and that he received a “picket fence” medical profile on 11 August 1989; and it was that the applicant owed money to the Army in that he had drawn “double” pay during his previous period of incapacitation (1 July 1986 through 14 April 1987) in that he had drawn both pay for IDT, plus full-month “incap” pay, resulting in a drastic overpayment, and that he had made numerous “unauthorized” sick call visits to military medical facilities for which further recoupment was to be made. 

Counsel states that the applicant is obviously not seeking “incap” pay prior to 
15 April 1987 for he was receiving that pay for his broken ankle prior to that date. Counsel provides a history of the applicant’s injuries and treatments working backward from the date of the applicant’s knee surgery on 19 March 1990.  He states that the Army’s own orthopedist, Dr. Morrisey, at Fort Sill checked “yes” to the question on whether the applicant could perform military duties, that clearly meant “yes” to “some” or “light” duties because the profile awarded that doctor on 20 November1989 was TL3 with a duty restriction of “no running, no jumping, nor marching.  Thus, the applicant was medically incapable of performing normal military duties four months prior to his surgery. 

Counsel then goes back to 19 November 1987 in which that same doctor, Dr. Morrissey, awarded the same profile with the same duty restrictions.  Counsel states that that doctor at that time had scheduled the application for arthroscopic surgery on 20 December 1987, and because of delays that surgery was not actually performed until 19 March 1990. 

Counsel then states that two letters (January and August of 1988) by the same aforementioned doctor, while questioning whether the applicant’s his knee injury was torn in the 23 February 1986 parachute jump, did confirm the existence of a knee injury.  He states that a diagnosis by a civilian doctor, Dr. Nebergall,  in February 1989 and that of the battalion surgeon, Dr. (CPT) Michael Mitchell, in February 1990 confirmed the knee injury, and that a evaluation report of December 1989 stated that the applicant had been on medical profile since February 1986 for a knee injury.

Counsel goes back to September 1987 stating that the applicant was unable to perform physical training while at Fort Bragg and provides a copy of a medical record and two other medical records referring to problems with his knee.  Then in August of 1987 the applicant was seen at the McAlester (Oklahoma) Army depot on complaining of pain to his knee.

Counsel states that the applicant mentioned knee pain every time he visited Fort Sill after his initial hospitalization in Muskogee (as somewhat corroborated by Fort Sill medical entries of September and October of 1986 and March 1987.  Counsel concludes that there is no doubt that the applicant suffered a knee injury in the jump of 23 February 1986 and that that injury is well documented from at least 19 November 1987 with strong corroboration in documentation in August and September 1987, and the civilian documentation for February 1986 is clearly consistent with a knee injury.  The conclusions and supporting documentation of two LOD determinations should not be disregarded, nor should the applicant’s testimony be overlooked.  Counsel fails to understand how DCSPER could fairly have failed to find that the applicant injured his knee on 23 February 1986.

Counsel goes into an analysis refuting DA DCSPER conclusions that the applicant was drawing jump pay during his period of incapacitation and had been on hazardous duty orders since late 1987.  He stated that the applicant did draw some jump pay, however, the vast majority of his pay vouchers show no jump pay, and that at least some of the erroneous disbursements of jump pay were in fact repaid by the Army (the applicant stated that whenever he noticed jump pay on his pay vouchers, he did advise the pay clerk of the error).  He states that a review of pay records indicate that administrative errors were made on the applicant’s pay vouchers, thus causing him to receive jump pay when he should not have.  Counsel states that the applicant’s jump log shows no military jumps during the period in question and that a hazardous duty order of 
1 November 1987 was routinely published when the applicant transferred from one airborne unit to another and only means that the applicant was “legally” eligible to jump.

Counsel picks apart the DA DCSPER memorandum which indicated that the applicant was medically capable of performing his normal military duties, because of the considerable duty that he performed during the period in question, because the applicant had no documentation of medical incapacitation, and because he received a “picket fence” profile on 11 August 1989.  Counsel states that the applicant did perform some light duties, not his “normal” duty and there is no evidence to the contrary.  Counsel states that the DA DCSPER assertion that there was no medical documentation of any medical incapacitation due to his knee injury prior to 19 March 1990 is beyond comprehension.  Counsel states that the “picket fence” profile of 11 August 1989 must be paired with his report of medical history (actually prepared on 11 March 1989) showing that the applicant was reporting a serious knee injury.  Counsel again states that the doctor who gave him the “picket fence” profile of 11 August 1989 realized his error and repudiated it.  Counsel also states, in fact, that the DA DCSPER memorandum actually supports the applicant’s contention that his knee injury was in line of duty.  Counsel goes on to say that the DA DCSPER overlooked the formal LOD, which conclusively confirmed the applicant’s claim of substantial knee injury on 23 February 1986.  
     
Counsel discusses the overpayments alleged by DA DCSPER, makes reference to a 3 December 1992 memorandum from the Army Reserve Pay Support Center in Indianapolis, which states in effect that an audit of the applicant’s pay indicated a debt to the government of $1,286.68, because of duplicate payments (receiving “incap” pay and IDT pay).  Counsel states that the overpayments were collected and provides copies of the applicant’s pay vouchers for confirmation. Counsel also states that if the applicant had been inadvertently overpaid, he stands ready to rectify the situation.

Counsel takes offense to that portion of the DA DCSPER memorandum which accused the applicant of a number of allegedly unauthorized visits to a military medical facility for which DA requested recoupment.  A Surgeon General memorandum calculated the costs of the “sick calls” in question to be $674.00.  Counsel states that it is difficult to “unscramble” from the Surgeon General memorandum just which “sick calls” were authorized and which were unauthorized in view of the applicant’s considerable short tours of duty and his treatment for injuries incurred in line of duty.  The memorandum from the Surgeon General also indicated that the review of the visits in question was not intended to infer care as authorized or not; but that that was a command responsibility.  Counsel provides dates that the applicant performed various short tours of duty, and stated that those dates did not include inactive duty, i.e., weekend drills and the like.  Counsel also provides an explanation for the visits noted in the Surgeon General memorandum.       
   
EVIDENCE OF RECORD:  The applicant's military records show:

A 24 February 1986 Statement of Medial Examination and Duty Status  
(DA Form 2173) (LOD) completed by a civilian physician, Dr. Reufer, at Muskogee Regional Medical Hospital indicates that the applicant, then a Sergeant E-5, sustained a fractured right ankle as a result of a parachute jump on 23 February 1986, in which he landed with one foot in a rain wash.  His commanding officer, LTC Jackson, determined his injury to have been in line of duty.

Notes compiled by the applicant concerning his conversations with a physician’s assistant at Fort Sill indicate an ongoing discussion from April 1986 to December of that year concerning the applicant’s physical status, whether he could perform his regular military duties and whether he should be taken off incapacitation pay.

Medical reports of 8 September and 20 October 1986, and 26 March 1987 indicate evaluations and treatment for his right ankle injury, and complaints about his right knee.  The medical authority, Dr. Morrissey, on the 26 March evaluation, stated that he could perform his military duties with limitations, i.e., no running, no jumping, etc.

On 20 March 1987 the applicant’s counsel corresponded with the commanding officer of the 2nd Battalion, 12th Special Forces Group (the applicant’s commanding officer) concerning application pay for his applicant.  He cited the same arguments for “incap” pay as previously noted above, i.e., Comptroller General decisions concerning “normal” military duty, applicant’s MOS and the physical requirements thereof, full pay and allowances to include hazardous duty pay, applicant’s profile, etc.  Counsel’s letter does indicates that the applicant was on incap status from the date of his injury on 23 February 1986 until 30 June 1986, and again on 27 February 1987 he went back on incap status pursuant to further surgery (which included pin removal); however, on 13 March 1987, with his leg still in a cast, Dr. Morrissey declared him able to perform duties in his MOS.

The applicant was seen for pain to his right knee at the McAlester Army Ammunition Plant health clinic on 11 and 12 August 1987.

Medical reports in September 1987 from a Fort Bragg, North Carolina medical  clinic indicate the applicant complained of pain to his knee and was given temporary relief from physical training.  Nonetheless, the applicant successfully completed a phase of the special forces qualification course on 25 September.

A 1 November 1987 order authorized the applicant to perform parachute duty.

A 22 December 1987 LOD completed by the same aforementioned civilian physician, Dr. Reufer, at Muskogee Regional Medical Hospital, indicates that the applicant, a Staff Sergeant E-6, injured his right knee as a result of the parachute jump on 23 February 1986.  On 30 November 1987 his new commanding officer, Major Bray, determined his injury to have been in line of duty.  Block 10 of that DA Form 2173 indicates the nature and extent of injury as “Injured Right Knee”, and that the details of the accident state in pertinent part, “and as a result soldier suffered injuries to Right Knee”.  The underlined type portion is approximately one half line below that of the previous text.  There is no mention in this report of an ankle injury.  

The orthopedic doctor at Fort Sill, Dr. Morrissey, awarded the applicant a temporary TL3 profile on 19 November 1987 (as counsel contends) and stated that he could perform military duties, that he could run at his own pace/distance, no jumping.  That same doctor on 14 January 1988 stated that the applicant did have a torn meniscus of his knee; however, there was no conclusive evidence that a knee injury was ever documented following his parachute jump.  There was one reference to his knee, but he was experiencing knee pain as a result of his crutch ambulation.  Because of this he could not conclude that his knee injury was a result of his parachute jump and sustained in line of duty.  

That same doctor on 23 August 1988 indicated that the applicant said that he injured his knee as a result of the same injury in which he suffered a fracture to his right ankle; however, a review of his medical records, and those obtained from Muskogee Regional Medical Center, made no mention of a knee injury at the time of his ankle injury.  He stated that the copies of the applicant’s medical records from Muskogee hospital were obtained, and on review, dictated on 23 February 1986 by Dr. Ruefer, there was no mention of a right knee injury.  In fact, extremity examination was stated to be normal with the exception of tenderness and swelling of the right ankle.  Also there was no evidence of a documented knee injury during his hospitalization following the ankle injury.   Consequently, since there was no evidence that the knee injury occurred during line of duty, there was no indication to treat the applicant in a military facility.

A NCO evaluation report for the period November 1988 through October 1989 shows that the applicant’s rater indicated that the applicant needed some improvement in the physical fitness portion of Part IV - Values/NCO Responsibilities, saying that the applicant had been on medical profile since Feb 1986 for injury to his knees during airborne operations.  In other portions of Part IV (competence and leadership) his rater gave him the highest rating of “Excellence”, and gave him the rating of “success” in training and responsibility and accountability.  His rater stated that his overall performance and potential was among the best, that he was a highly capable soldier respected for his dedication to duty and that he attacked the toughest tasks with vigor and initiative. 

On 6 February 1989 a civilian orthopedic doctor in Tulsa, Oklahoma stated that the applicant was seen by him on 9 December 1988, at which time the applicant reported that he had a right ankle fracture, right knee injury, and a low back injury because of the parachute jump on 23 February 1986.  That doctor stated that the applicant had a torn medical meniscus to his right knee and recommended that he undergo arthroscopic surgery.
In a 11 March 1989 report of medical history the applicant stated that he was undergoing treatment for his right ankle, knee, and back; that he had an operation to his right ankle, and needed an operation on his right knee.  

An 11 August 1989 report of medical examination indicates that the applicant was qualified for retention in the Army with a physical profile of 1 1 1 1 1 1.  That examination was conducted by a Reserve Medical Corps Captain Nickerson. 

A 20 November 1989 medical report prepared by Dr. Morrissey shows that the applicant had a knee injury, that he could perform military duties, and that he was awarded a TL3 profile, no running, no jumping, no marching (as counsel contends).  The doctor recommended surgery. 

A 21 November 1989 DA Form 2173 completed by the Chief of the Patient Affairs Branch at Reynolds Army Community Hospital at Fort Sill indicates that the applicant had an injury to his right knee because of parachute jumping on 23 February 1986.  His commanding officer, a special forces lieutenant colonel, requested a formal LOD investigation.  On 19 December 1989 an investigating officer found that the applicant injured his right knee on 23 February 1986 as a result of a parachute jump and that that injury was in line of duty.  In his report, the investigating officer referred to the two previous informal LOD reports, and stated that the applicant had mentioned to medical personnel that he was experiencing pain in his right knee on four occasions (28 Feb, 8 Sep, 3 Nov and 22 Oct, all in 1986).  Medical records for those four dates appear to mention his knee (the 28 Feb record indicates pain right knee while amb), during the times that he was evaluated for his ankle injury; however, the entries are somewhat indecipherable.  Attached to that LOD investigation is a 5 February 1990 letter from a civilian doctor (also the battalion surgeon), Dr. Mitchell, who stated that the only way that the applicant could have injured his knee was in conjunction with his ankle, and that he had never been seen by him or by any of his medics before for complaints of knee pains, and that in his opinion he injured his knee during the airborne operation.  Also attached is a 5 December 1989 medical statement from the Fort Sill orthopedic physician, Major Morrissey, who saw the applicant for his ankle injury on 20 November 1989.  He stated that the applicant underwent surgery for his ankle injury, that his major complaint now was his right knee pain, and that his physical examination on that date  (5 December) is consistent with a medial meniscus tear.  The doctor stated that he needed surgery for his right knee, that it was possible that his injury could have been sustained in a parachute fall, but stated that there was no documentation during his in-patient care after the fall that documents that he injured his right knee, that is, that the injury occurred in February 1986.  

Also included with this report is a 25 January 1990 sworn statement from the applicant that he mentioned his right knee pain during his stay at the Muskogee hospital and also during his treatment at Fort Sill for his ankle.  On 
10 February 1990 the applicant’s commanding officer determined that the applicant’s injury was in line of duty.

A 20 September 1990 LOD indicates that the applicant injured his left wrist, elbow, neck, right knee, right ankle, and lower spine because of a vehicle accident on 22 July 1990.  Those injuries were determined to be in line of duty.

A 15 April 1991 health record indicates that the applicant was treated at the Tinker Air Force Base hospital because the applicant complained of bilateral knee pain for years.  That record indicates that the applicant stated that he hurt his right knee in a car wreck in 1986 and his left one in a car wreck in 1990.
He also complained of left elbow pain and stated that a civilian physician in Tulsa suggested that he have an EMG.  Examination of the elbow was unremarkable.  Both knees were not swollen and had good range of motion, however, there was tenderness to palpation of the joint medially bilaterally.  The assessment was chronic elbow and knee pain.  The applicant was asked to bring a copy of his knee x-rays from the 1986 and 1987 accident.

On 12 August 1991 the applicant’s battalion commander (a special forces officer, also an attorney) did recommend that the applicant receive “incap” pay for the period 23 February 1986 through 30 April 1990, that he did not request “double payment” for the period 23 February 1986 through 15 April 1987 when he was receiving “incap” pay for his ankle injury, or for IDT, annual training, and other “short tour” periods.  He stated that the applicant had received incap pay for his broken ankle in two increments, from 23 February 1986 through 30 June 1986, and, as a result of the legal controversy, from 30 June 1986 through 
14 April 1987; and after the applicant received his medical care for his broken ankle, and received his second increment of incap pay, the controversy over his wrenched knee commenced.  That official stated that he had personally reviewed the circumstances and firmly believed that it was in the interest of fairness and equity to grant the request. 

On 5 November 1992 the DA DCSPER approved the request for “incap” pay only for the period 19 March 1990 through 29 April 1990 (from the date of his knee surgery to the end of his convalescence).  The DA official stated that a review of the applicant’s medical records indicated that he incurred numerous medical ailments and injuries during initial and advanced training, and received treatment for his left ankle, right ankle, right knee, left shoulder and right hip.  The applicant himself stated that he had suffered stress fractures of his knees and ankles in early 1983.  A 15 November 1983 physical examination stated that he was airborne qualified. 

The DA official commented on his broken ankle injury in February 1986, and stated that there was some mention of his right knee, evaluations indicated that his knee was stable and without effusion.  The assumption that the right knee may have been aggravated by his fall was reasonable, considering his numerous previous injuries.  He stated that during the applicant’s physical therapy sessions at Hillcrest Physical Therapy Associates in November and December of 1986, there was no indication of any treatment directed at his right knee.   He stated that during the medical evaluation  on 13 March 1987 there was no mention of his knee being a problem, and he was returned to duty on 14 April 1987.  

That official went on to say that during 1988 there was no medical documentation indicating that the applicant was unfit to perform his military duty. The 11 August 1989 quadrennial medical examination showed a 1 1 1 1 1 1 physical profile.  He was seen in November 1989 for complaint of right knee pain. The diagnosis indicated full range of motion, no effusion, or other problem.
That official stated that the applicant had performed numerous periods of duty during 1986 through 1990 and in some instances received “incap” pay along with other pay, and those monies would have to be recouped.  He stated that a compete pay audit [of the applicant’s payments] would have to be made.  The DA official stated that the applicant had also received unauthorized medical care, and that there was no authority for the applicant to continue to receive care beyond the period of duty unless the illness or injury is related to the member’s performance of duty.  He stated the applicant received an eye examination and prescription for glasses when not in a duty status and not authorized care and that he had a number of eye evaluations without authorizations.  He requested that the commander of the USACAPOC conduct an investigation into the circumstances of this case.  The DA DCSPER provided a brief pay audit for 1986 through May of 1990, showing the dates the applicant received “double” payments, i.e., “incap” pay, IDT pay, and also the dates he received parachute pay.

On 14 May 1993 a judgment rendered in the United States District Court for the Northern District of Oklahoma, indicated that the lawsuit was originally commenced to obtain Army medical care and treatment for the applicant’s right knee due to an injury in a parachute jump on 23 February 1986, but that issue was moot because the Army provided the necessary treatment.  The court document stated that, however, that the United States Army had no reasonable basis to contest that the applicant’s right knee injury was related to the February 1986 parachute jump.  The court did award the applicant’s attorney some $21,000.00 for fees and expenses relating to the applicant’s claim.

A 29 December 1994 letter to the applicant’s counsel from the doctor, Major Nickerson, who examined the applicant on 11 August 1989 and gave him a “picket fence” profile, stated that that profile was incorrectly completed and should have listed an existing T3 in the L component (1 1 T3 1 1 1).

A 3 December 1992 memorandum from the Office of the Surgeon General indicates that the applicant received IDT pay while drawing “incap”  and that he had a debt to the government which had to be recouped (48 days of IDT pay).  It also indicated that for the dates after 1987 he received duplicate payments for performing IDT while drawing pay for active duty for training (ADT) and the IDT pay would have to be recouped. 

The applicant’s military pay vouchers from July 1986 through April 1987 show the government collected overpayments for 47 IDT periods (days); his voucher of June 1989 indicate collections of base pay for 10-12 March 1989; his voucher of December 1989 indicate collections of base pay for 12-13 August and 4-5 September 1989, and collections of jump pay for 4-5 September 1989.

A 17 December 1992 memorandum from the Office of the Surgeon General indicate that the applicant’s medical documents were reviewed to determine the cost of selected outpatient care provided to him and to determine if the care were billed to an authorized DOD beneficiary.  That memorandum indicated that the review was not intended to infer care was authorized or not; that that was a command/administrative responsibility.  The review indicated a total of 12 visits that were in question, the costs of which were determined to be $674.00 (total).

Medical records concerning the aforementioned care show that the applicant was seen, treated, examined, and/or provided care and services on 
24 April 1989 for abdominal pain, on 3 October 1989 for injuries to his left hip and knee (vehicle accident on 28 September 1989 while traveling home on ADT orders), on 14 June 1990 for left knee pain, on 22 July 1990 for left wrist, elbow, neck pain, etc. (vehicle accident while driving a military tractor/trailer), on 
14 Jun 1990 for his left knee, on 8 May 1989 for abdominal pain, on 
1 September 1989 for abdominal pain, on 19 December 1989 for abdominal pain, on that same date for any eye examination, on 15 March 1990,  
11 January 1990,10 February 1990, 14 January 1990 and 15 April 1991, for various ailments, to include treatment for knee injuries as a result of a vehicle accident.  Forms show that he received an eyewear prescription, picked up  glasses on 30 January 1990, and was again seen by optometrists at Tinker Air Force Hospital on 21 February 1990.
 
The applicant received five evaluation reports beginning in September 1985 and ending in October of 1990.  These reports, except on one occasion, showed that he could not take or pass the physical training test because of his injury from the parachute jump.  All of these reports, however, indicate that he was fully capable of performing his duties, and in most instances show that his performance of his duties was outstanding.  His rating officials stated that he should be promoted ahead of his peers.  His duties during the periods of these reports were as an assistant special operations engineer NCO, a special operations engineer sergeant, and an airdrop equipment repair supervisor.  He was promoted to staff sergeant on 30 January 1987. 

September 1985 - August 1986.  His rater stated that the applicant did not take the physical training test because of his profile.  He stated that the applicant was highly proficient in the skills of a special forces engineer NCO and had attended several military and civilian schools during the past year.  
October 1986 - September 1987.  Again the applicant did not take the physical training test.  Both rater and indorser stated that his performance in his duty as an assistant special operations engineer NCO was outstanding.
November 1987 - October 1988.  Both the rater and indorser gave him the highest rating in the physical fitness portion of the evaluation.  His rater stated that during the rating period, the applicant completed the basic NCO course (BNCOC), and the mortar specialist course, among others.  His rater and indorser considered his performance as outstanding. 
November 1988 - October 1989.  His rater indicated that the applicant had been on medical profile since February 1986 for injury to his knees during airborne operations, and did not take the physical fitness test.  His performance and potential ratings, and comments by both his rater and senior rater were outstanding.
November 1989 - October 1990.  His rater stated that he failed the physical training test because of an airborne injury.  His rater stated that he was fully capable of performing his duties, and his senior rater considered his performance and potential as excellent.       
       
On 5 March 1998 an advisory opinion (COPY ATTACHED) was obtained from the DA DCSPER.  An official of that agency asserted that the applicant received outpatient medical care at Fort Sill Oklahoma on 8 September and 
20 October 1986, and 26 March 1987, and except for those three periods, there was no evidence that he received any medical treatment during the one year subsequent to the parachute jump injury.  That official noted that records indicated that while the applicant was receiving “incap” pay  (July 1986 through April 1987), he was also attending IDT and active duty training, and that he continued to attend inactive duty training and ADT from 1987 until 1990.  He went on to provide information concerning the applicant’s second line of duty investigation, his medical examinations and treatments, and his arthroscopic surgery on his right knee on 19 March 1990.  That official notes that the applicant continued to perform IDT and ADT during the months prior to and subsequent to that surgery.  He stated that on 15 April 1991, a physician at Tinker Air Force Base recorded an outpatient transcription wherein the applicant stated that he had injured his right knee in a car wreck in 1986 and his left knee in a car wreck in 1990.  

The DCSPER official noted that the applicant received “incap” pay for nine and one-half months, and he demonstrated the physical capability to perform his normal military duties within five months of his injury; and his continued performance of duty during the remaining course of the case, demonstrated his physical capability to perform his normal military duties.  That official recommended disapproval of further incapacitation pay to the applicant.

Title 37 USC Section 204 is quoted in pertinent part:

     “(g)(1) A member of a reserve component of a uniformed service is entitled to the pay and allowances provided by law or regulation for a member of a regular component of a uniformed service of corresponding grade and length of service when such member is physically disable as the result of an injury, illness, or disease incurred or aggravated - … (B) in line of duty while performing inactive duty training … (2) In the case of a member who receives earned income from nonmilitary employment or self-employment performed in any month in which the member is otherwise entitled to pay and allowances under paragraph (1), the total pay and allowances shall be reduced by the amount of such income. …”
     
     “(h)(1) A member of a reserve component of a uniformed service who is physically able to performed his military duties, is entitled, upon request, to a portion of the monthly pay and allowances provided bylaw or regulation for a member of a regular component of a uniformed service of corresponding grade and length of service for each month for which the member demonstrates a loss of earned income from nonmilitary employment or self-employment as a result of an injury, illness, or disease incurred or aggravated - … (B) in line of duty while performing inactive duty training … (2) The monthly entitlement may not exceed the member’s demonstrated loss of earned income from nonmilitary or self-employment. … (2) Pay and allowances may not be paid under subsection (g) or (h) for a period of more than six months.”   

The National Defense Authorization Act for FY 1987 (Public Law 99-61) provided a legislative history of disability benefits for Reserve Component members, and states in pertinent part:  “Currently, if a member of a reserve component or a National Guardsman on active duty for 30 days or less and suffers an injury or disease, the authority for continued military pay and allowances is determined by the ability of the reservist or Guardsman to perform his normal military duties (37 U.S.C. 204).  It is possible that a disable Reservist or Guardsman could perform his civilian job but not his military job and be paid for both during the period of the disability (that has no statutory termination date. … n the other hand, should the same person be able to perform his military duty but not his civilian job, there is not authority to provide any compensation.  Since the military duty is only part time, the financial consequence could be substantially detrimental.  The instant proposal would correct this inequity by authorizing pay and allowances, limited to a six month period, to such a disabled reservist or Guardsman who is unable to earn income from civilian sources as a consequence of the disability. … If the member could perform in his civilian job but could not perform his military duty, he could be paid for schedule inactive duty training notwithstanding his ability to train.  Current provisions entitling members of the reserve components and the National Guard to full pay and allowances irrespective of their ability to earn civilian compensation would be repealed.

The Comptroller General, in pertinent portions of Volume 52, Decisions of the Comptroller General from 1July 1972 to 30 June 1973, states in effect that in a decision of March 4, 1958, that the conditional release from the hospital by a service medical board with a recommendation that the member be returned to a duty status with a temporarily restricted duty or to a duty status with limited activities and the further requirement of periodically reporting for reevaluation of a physical condition is regarded as a final decision in the member’s case.  They therefore said that since there are varying degrees of temporarily restricted duty and limited activities which may be applicable in different cases and that when a member is returned to a duty status, that the matter of his right to active duty pay and allowances should be decided on the basis of whether or not he is returned to a duty status and without regard to the amount or degree or restricted or limited duty it is recommended that he perform after his return.  They refer to the case of an aviation pilot injured while on training duty with entitlement to pay and allowances until he was physically qualified to perform his full and specialized duty of flying, but that if the Reserve member was capable of performing restricted or limited duty, under their decision the actual return of such a Reserve member of Reserve duty status is the determinative factor in establishing the cutoff date of pay and allowances and the member ceases to be entitled to pay and allowances when he is officially returned to a Reserve duty status.

However, in two cases involving Florida National Guard soldiers, one of whom hurt his back in a parachute jump during annual training, the Comptroller General, while stating that the ability to resume normal civilian employment is not the standard to be used in determining entitlement to disability pay where contemporaneous service medical data are available, and that entitlement to disability pay and allowances therefore terminates when the member recovers sufficiently to perform his military duties; now stated that neither the mere physical presence of an injured reservist at a regular drill of his military unit nor a conditional temporary assignment to limited duty in itself constitutes an event which should terminate entitlement of pay and allowances on account of an injury incurred in line of duty while performing military duty or to medical care and hospitalization therefor.  The inequities resulting from their decision requiring the termination of pay and allowances when a reservist is temporarily authorized or directed to perform limited military duties pending recovery from an injury or disease incurred in line of duty, that decision and other similar decisions would no longer be followed.

The information provided by the Comptroller General relative to this new policy when on to say, however, where the member is not provided medical or hospital care by the military services we suggest that the payment of pay and allowances may be dependant not only upon the prompt reporting of the occurrence of a disability, but also upon the periodic reporting currently of his disability condition, that is, that such payments be supported for each individual month by the report of his civilian physician based upon his physical examination made during that month showing the member’s physical condition, as well as the member’s statement showing the days (1) he performed any military training duty or (2) he was employed during that month in civilian employment with the name and address of his employer. 

The next Comptroller General decision involved an MP injured in a jeep accident, who attend regularly scheduled weekend unit assemblies with his unit, but could not perform his normal military duties as a military policeman, and in fact was physically unable to fully perform those duties.  That decision stated, in pertinent part, that neither the mere physical presence of the injured member at a regular drill of his military unit nor a conditional temporary assignment to limited duty in itself constitutes an event which terminates entitlement to pay and allowances on account of an injury incurred in line of duty.  It went on to say that during the period the soldier had an L-3 physical profile assigned to him by Army medical authorities.  He therefore did not at that time possess the physical qualifications prescribed by Army Regulations 611-201 for his normal military duties as a military policeman, and hie was in fact physically unable to fully perform those duties.

An earlier Comptroller General Decision involved a Naval Reserve officer, an aviation pilot, who sustained a back injury when he ejected from his aircraft during a scheduled drill period.  He was hospitalized with the recommendation that he not return to work for about 6 weeks.  Following his release from the hospital the officer was examined periodically at a dispensary, and it appeared that although he was not considered as physically qualified to perform his usual and normal duties as an aviation pilot, including aerial flights, he was in the opinion of the naval medical authorities considered as physically fit to perform naval duties of a limited or restricted nature.  The decision went on to say that whereas no particularly acute administrative problems ordinarily are encountered in assigning an injured Regular member to limited or restricted duties, such a course of action may be completely impractical in certain situations involving Reserve members.  For example, the Reserve officer mentioned was an aviation pilot and it was stated that “In the area of Naval Air Reserve Training, there are practical impediments to placement of an aviation pilot on limited duty with his unit when the primary mission of the unit is training in the flight of aircraft.”  In this case, the Comptroller General concluded that entitlement [to pay and allowances] should not cease when a member is physically qualified to perform duty of a limited or restricted nature; and that entitlement should continue until the member is physically qualified to perform his full and specialized duties such as flying, deep-sea diving, or underwater demolition.  The Comptroller General cited an 1964 Executive Order No. 11157, which states that any member who is required by competent orders to perform hazardous duty and who becomes injured as a result of the performance of such hazardous duty shall be deemed to have fulfilled all of the requirements for the performance of all hazardous duties which he is required by competent orders to perform for a period not to exceed three months following the date as of which such incapacity is determined by the appropriate medical authority. 

In another decision, the Comptroller General stated in effect that a member of the National Guard who is disable in line of duty is entitled by law to continued pay and allowances during the subsequent period when he remains incapacitated for the performance of his normal military duties, and the determination as to how long the disability continues is left to the exercise of sound administrative judgment.  In each case the service concerned is to determine when the injured member has recovered or determine that he should be separated for disability.

When a National Guard member is injured in line of duty while performing active duty for training, administrative determinations concerning the member’s disability should, whenever possible, be based upon the findings  and conclusions of service medical personnel, but in the absence of such findings, military command authorities may reasonably rely on secondary evidence, including statements from private physicians, in making the necessary administrative determination. 

A National Guard member injured in the line of duty who was thereafter relieved by military command authorities from the performance of his normal military duties for reasons of physical unfitness, on the basis of evaluations by civilian physicians and evidence that he was physically unable to pursue his civilian farming occupation, may be allowed disability pay and allowances, even though veterans administration personnel advised him to try working, since such advice did not constitute a final determination regarding fitness for active military service. 

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__JH____  __FKM___  __SLP__  DENY APPLICATION




						Loren G. Harrell
						Director