MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 12 June 2003
         DOCKET NUMBER: AR2002082411

         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.

Mr. Carl W. S. Chun		Director
Mr. Edmund P. Mercanti		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor, Jr.		Chairperson
Mr. John P. Infante		Member
Ms. Eloise C. Prendergast		Member

         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)

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APPLICANT REQUESTS: That he be given incapacitation pay for the period 9 October 1992 to 18 March 1996.

APPLICANT STATES: That he is entitled to incapacitation pay from the date of the inception of his disabling mental condition while he was on active duty in 1990, to the date he was placed on the Temporary Disability Retired List (TDRL).

In support of his request, he submits numerous letters he sent to his elected members of Congress, many of which contain complaints of not being rated for conditions which arose or deteriorated after he was placed on the TDRL. He also submits selected portions of his Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB).

EVIDENCE OF RECORD: The applicant's military records show:

He was inducted and entered on active duty on 29 January 1971. He was awarded the military occupational specialty of personnel management specialist and was promoted to pay grade E-5. He was honorably released from active duty on 26 January 1973.

He was assigned to an US Army Reserve (USAR) unit on 24 April 1974. He enlisted in the Army National Guard (ARNG) on 19 April 1975, was awarded the MOS of military pay specialist and was promoted to pay grade E-6.

On 19 October 1977, he was commissioned as a second lieutenant. He remained assigned to the ARNG and was promoted to the rank of major.

While performing 12 days of active duty for training with his ARNG unit, on 9 July 1990 the applicant was hospitalized for possible pneumonia. A formal line of duty (LOD) investigation was conducted on that incident, with a finding that his pneumonia was an existing prior to service (EPTS) condition which was aggravated by military service.

On 19 November 1990, the applicant was ordered to active duty in support of Operation Desert Shield/Desert Storm. On 2 March 1992, he was honorably released from active duty at the expiration of his term of service and returned to his ARNG unit.

On 15 January 1993, the National Guard Bureau forwarded a Headquarters, Department of the Army approval for extension of the applicant’s incapacitation pay beyond the 6-month limitation to receive that pay. The period of extension was from 3 September through 8 October 1992.

On 30 June 1993, the applicant’s former civilian employer wrote a letter stating that the applicant worked for them in October and November 1990, where he averaged over $1,900.00 a week in commission. His employer added that their average dealer made between $700.00 and $800.00 a week. After the applicant’s return from Operation Desert Storm, he returned to work for them, but he was unable to sell his product anymore. It appeared that he was unsure of himself and easily forgot important sales incentives.

On 30 September 1995, an MEB was convened to determine whether the applicant was medically qualified for retention. The MEB determined that the applicant suffered from undifferentiated somatoform disorder, moderate, chronic; hypertension; mild obstructive sleep apnea/hypopnea syndrome, status post laser assisted uvuloplasty; and stable pulmonary nodule right middle lobe. The MEB determined that his conditions were medically disqualifying for retention and referred him to a PEB.

On 9 February 1996, a formal PEB was convened to determine whether the applicant was physically fit to perform his duties. The PEB determined that the applicant was physically unfit due to undifferentiated somatoform disorder, moderate, chronic. The PEB determined that the other conditions listed on the applicant’s MEB were not unfitting and, therefore, not ratable. However, the PEB also determined that the applicant’s physically unfitting condition was not stable enough to rate permanently, so the PEB recommended that the applicant be placed on the TDRL, rated 30 percent disabled. The applicant concurred with those findings and recommendation.

On 19 March 1996, the applicant was honorably discharged from the ARNG and placed on the TDRL.

On 8 March 2001, the applicant was discharged from the TDRL and placed on the retired list for physical disability, rated 50 percent disabled.

Medline Plus Health Information defines somatoform disorder as any of a group of psychological disorders (as body dysmorphic disorder or hypochondriasis) marked by physical complaints for which no organic or physiological explanation is found and for which there is a strong likelihood that psychological factors are involved.

Army Regulation 635-40, the regulation which governs PEB’s, chapter 7, provides the policy and procedures for individuals assigned to the TDRL. Paragraph 7-11 states, in effect, that disabilities which are incurred or which deteriorate while an individual is assigned to the TDRL are not ratable.

Army Regulation 135-381 and title 37, U.S. Code, section 204, provides for continuation of pay and allowances under certain circumstances to reservists who are disabled in line of duty as a direct result of the performance of their duties. To receive continuation of pay, referred to as incapacitation pay, reservists must either be unable to perform their normal military duties or be able to show a loss of nonmilitary income. If the reservist continues to work at his or her civilian job, the amount of money earned is deducted from the incapacitation pay. Entitlement to incapacitation pay is limited to 6 months unless the Secretary of the Army finds that it is clearly in the interest of fairness and equity to extend the incapacitation pay. Only in the most meritorious cases will incapacitation pay be extended past the 6-month limitation.

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

1. The only medical records available were those provided by the applicant.

2. The applicant was given a little over 7 months of incapacitation pay, which is slightly over a month more than the maximum allowed without a finding by the Secretary of the Army that it is clearly in the interest of fairness and equity to extend the incapacitation pay.

3. The Board must now consider whether it would be in the interest of fairness and equity to extend the applicant’s incapacitation pay past the 6-month statutory limit (over 7 months in this instance). Since neither the governing law or regulation defines fairness and equity, the Board has carefully reviewed the applicant’s circumstances.

4. In this regard, the applicant was disabled and placed on the TDRL solely for somatoform disorder. The PEB only rated the applicant 30 percent disabled, the lowest rating which would authorize a soldier to be placed on the Retired List. There is no evidence of any traumatic event which caused the somatoform disorder while the applicant was on active duty. There is no explanation of why it took so long to process the applicant through the Disability Evaluation System. The passage of time has made it impossible to reconstruct exactly what happened in the applicant’s case. When all these facts are considered together, the Board does not consider it clearly in the interest of fairness and equity to extend the applicant’s incapacitation pay beyond the statutory 6-month limitation of such pay. .

5. As for the applicant’s contention that he should be rated for the medical conditions which deteriorated or arose while he was on the TDRL, the Army is limited by law to rate only those conditions which were the basis of a soldier’s placement on the TDRL.




6. 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

___eip ___ ___jpi___ ___rvo __ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2002082411
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030612
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	128.00
2.
3.
4.
5.
6.