RECORD OF PROCEEDINGS


         IN THE CASE OF:


         BOARD DATE: 01 APRIL 2004
         DOCKET NUMBER: AR2003093341


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Walter T. Morrison		Member
Mr. John T. Meixell		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military records.

         Exhibit B - Military Personnel Records (including advisory opinion, if any).


The applicant requests back pay. He made no statement, but deferred to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE :

1. Counsel requests consideration of the applicant's request for back pay.

2. Counsel states that the Board considered [and denied] the applicant's request for entitlement to incapacitation pay only, whereas the applicant intended to request, at least in the alternative, entitlement to "back pay" for the period in questions. In this respect, counsel makes reference to the last sentence in item 9 of the continuation sheet on the applicant's initial request to the Board. Counsel states that the applicant is eligible for and entitled to receive "back pay" as distinguished from incapacitation pay for the period 9 October 1992 to 18 March 1996. He states that the applicant received no pay while awaiting a decision from the Physical Evaluation Board (PEB). He states that the applicant should have been placed on the TDRL (Temporary Disability Retired List) on 9 October 1992 and not 19 March 1996.

3. Counsel provides a copy of the applicant's 2 November 2002 request to this Board for incapacitation pay, with the enclosures (items) supporting his (the applicant's request), and the 12 June 2003 Board decision denying the applicant's request for incapacitation pay. The enclosures (items) referred to were reviewed by the 12 June 2003 Board.

CONSIDERATION OF EVIDENCE:

1. As indicated in the 12 June 2003 Board proceedings (AR2002082411), the applicant received incapacitation pay for a seven-month period of time ending in October 1992.

2. Addendums to a Medical Evaluation Board (MEB), one completed on 16 September 1994, another on 20 June 1995, by an Air Force psychiatrist at Kessler Air Force Base in Mississippi, indicate that the applicant was diagnosed with an undifferentiated somatoform disorder, dysthymic disorder, passive/aggressive traits, multiple chronic medical symptoms as noted by the primary MEB, and moderate stress. The doctor recommended that the applicant be referred to a MEB.

3. On 30 September 1995 a Medical Evaluation Board convened at Keesler Air Force Base and recommended that the applicant be referred to an Army PEB because of his medical conditions. The applicant signed the board proceedings on 8 November 1995.
4. In a 6 February 1996 memorandum to the PEB, a colonel in the Mississippi Army National Guard stated that the applicant was in a "medical hold" status during the period March 1991 through 2 March 1992, after which he attended weekend assemblies in March 1992 prior to being classified as unfit for duty by the Mississippi Army National Guard personnel officer in March 1992. He stated that the applicant had been unable to attend subsequent assemblies since March 1992, and had not performed military duty since that date. He stated that he was not able to perform his previous civilian or military duties. He stated that the applicant's disability, which occurred during active duty during Desert Shield/Desert Storm, was the salient factor in his inability to find employment.

5. On 9 February 1996 a formal PEB determined that the applicant was physically unfit due to undifferentiated somatoform disorder, and recommended that he be placed on the TDRL with a 30 percent disability rating. On 19 March 1996 the applicant was honorably discharged from the Army National Guard and placed on the TDRL.

6. On 8 March 2001 the applicant was discharged from the TDRL and placed on the retired list for physical disability with a 50 percent disability rating.

7. Army Regulation 635-40 establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. It provides for medical evaluation boards, which are convened to document a Soldier’s medical status and duty limitations insofar as duty is affected by the Soldier’s status. A decision is made as to the Soldier’s medical qualifications for retention based on the criteria in AR 40-501, chapter 3. If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

8. Physical evaluation boards are established to evaluate all cases of physical disability equitability for the Soldier and the Army. It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.

9. Each case is first considered by an informal PEB. Informal procedures reduce the overall time required to process a case through the disability evaluation system. A Soldier is entitled to a formal hearing if requested after informal consideration by a PEB.

DISCUSSION AND CONCLUSIONS :

1. The applicant did not request back pay in his initial request to this Board, but only as an afterthought noted that he had not received incapacitation pay or back pay beyond 8 October 1992 [until the date that he was placed on the TDRL].

2. Nonetheless, there is no evidence, nor has the applicant or counsel submitted any, to show that he is due any back pay. Other than incapacitation pay, there are no provisions for providing pay to a Reserve component soldier who does not attend training assemblies, or who suffers a loss of his civilian income because of his inability to work, as the applicant implies. The issue of incapacitation pay was addressed by the 12 June 2003 Board.

3. Noted is the 6 February 1996 memorandum to the PEB concerning the applicant's medical condition, causing his inability to perform his military or civilian duties. The applicant was authorized incapacitation pay through 8 October 1992, with no apparent request for an extension beyond that period. A 16 September 1994 addendum to a MEB makes reference to a primary MEB, indicating that disability proceedings had been initiated prior to that date. As noted by the 12 June 2003 Board, there is, however, no explanation of why it took so long to process the applicant through the Disability Evaluation System.

4. There is no authority to provide "back pay" to the applicant. There is insufficient evidence to show that any such pay is warranted.

5. On 9 February 1996 a formal PEB determined that the applicant was unfit for duty and recommended that he be placed on the TDRL with a 30 percent disability rating. The PEB made that determination concerning his medical condition at that point in time, not his medical condition in 1992. He is not entitled to have his records corrected to show that he was placed on the TDRL on 9 October 1992.

6. The applicant has submitted neither probative evidence nor a convincing argument in support of his request.


BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

__ FNE __ ___ WTM _ __ JTM __ DENY APPLICATION


The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.





                  ____Fred N. Eichorn_______
                  CHAIRPERSON

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INDEX

CASE ID	AR2003093341
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20040401
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.	129.00
2.
3.
4.
5.
6.