RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            08 JUNE 2004
      DOCKET NUMBER:   AR2003094856


      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             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |


  The following members, a quorum, were present:

|     |Ms. Jennifer Prater               |     |Chairperson          |
|     |Ms. Karen Fletcher                |     |Member               |
|     |Mr. John Denning                  |     |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'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, disability separation from the Army
National Guard with entitlement to disability severance pay.

2.  The applicant states, in effect, that he was injured in a motor vehicle
accident on 12 March 1999 while en route to his weekend drill with the
Alabama Army National Guard.  He states that as a result of the accident he
was hospitalized, incurred numerous medical expenses, and was ultimately
determined by the Department of Veterans Affairs to be 100 percent disabled
because of his unemployability resulting from his service incurred
disabilities.

3.  The applicant states that following his motor vehicle accident he
attempted to contact members of his chain of command to secure a line of
duty determination, but because of the Alabama Army National Guard’s
“willful neglect” a line of duty determination was not accomplished until 3
years after the fact.  He states that his attempts to contact agencies
outside the Army National Guard for assistance were met with resistance and
that he was ultimately “wrongfully” and by “force” separated from the Army
National Guard “without just cause.”

4.  The applicant states that finally, as a result of his persistence, he
received “two and [a] half months of incapacitation pay” and a favorable
line of duty investigation was completed.  He states, however, the
incapacitation pay was incorrect, and that as a result of delayed line of
duty action, his medical bills continued to mount.  He states that had the
Army National Guard followed statutory and regulatory requirements, he
would have been able to “apply for separation under Title 10…[and] to apply
for disability severance pay.”  He notes that the Alabama Army National
Guard’s intentional delay in finalizing his line of duty investigation,
their intimidation and retaliation for his attempts to file a complaint,
all resulted in the denial of medical treatment service, entitlements and
benefits, which he should have received following his motor vehicle
accident.

5.  In support of his request he submits copies of numerous letters
addressed to members of his chain of command, the State and National Guard
Bureau offices, members of Congress, and Department of the Army level
officials.  He submits a copy of medical documents associated with his
March 1999 motor vehicle accident, follow-up medical treatment, his 2002
favorable line of duty investigation, and copies of medical bills incurred
since his March 1999 hospitalization.  The applicant also submits a
November 2002 letter from the Alabama Army National Guard Adjutant General,
outlining the events which led to the applicant’s submission of his
application to this Board, and a September 2003 letter from the Governor of
Alabama, supporting his request for relief.



CONSIDERATION OF EVIDENCE:

1.  The applicant initially entered military service in 1979 as an enlisted
member of the United State Air Force Reserve.  He continued his association
with the military in various components and was ultimately commissioned.
In August 1997 he executed an oath of office to become a first lieutenant
with the Alabama Army National Guard.

2.  He was assigned as a Field Medical Assistant with the 1st of the 167th
Infantry located in Talladega, Alabama.  His performance evaluation report,
rendered for the period 27 August 1997 through 31 May 1998, noted that the
applicant “performs his duties in a very responsible manner with dedication
to his unit and its soldiers.”  Both his rater and senior rater placed him
in the top rating blocks.

3.  According to a summary of medical treatment, completed on 29 March
1999, the applicant was involved in a motor vehicle accident at 6:30PM on
12 March 1999.  The summary indicated that the applicant was “hit from
behind by another vehicle while traveling at about 65 miles per hour…it was
a roll-over type accident with loss of consciousness.”  The applicant was
admitted to a hospital in Meridian, Mississippi and subsequently
transferred to another medical facility at the University of Alabama on 13
March 1999.  His initial diagnosis was:

      right pneumothoras
      right rib fractures 9 through 12
      bladder injury at the neck
      pelvic symphysis diastasis
      right-sided type II sacrum fracture.

4.  The medical summary notes that by 26 March 1999 the applicant “was
ready for discharge home” and that he was “ambulating well with a walker.”
His condition on discharge was “good” and he was discharged with a “walker
for home…a wheelchair for community transport…[and] a leg bag for his Foley
catheter.”  At the time of his discharge he was prescribed Tylox (pain
medication), ibuprofen, and Colace (stool softener).  His follow-up
appointments included an orthopedic and trauma clinic appointment within a
week and a urology appointment on 2 April 1999.

5.  Orders published by the Alabama State Military Department, Office of
the Adjutant General on 28 June 1999 discharged the applicant from the Army
National Guard effective 5 June 1999 and transferred the applicant to the
United States Army Reserve, 5th Medical Group in Birmingham, Alabama.  The
authority for the discharge was cited as paragraph 5a(8) of National Guard
Regulation 635-100.  Paragraph 5a(8) of National Guard Regulation 635-100
provides for the termination of a state appointment “upon becoming a member
of the Army Reserve.”  There are no other documents in available records
which detail the basis for the applicant’s discharge, although he contends
that it was a means whereby the Alabama Army National Guard attempted to
avoid the requirement to complete a line of duty investigation and to avoid
the monetary issues associated with the applicant’s mounting medical bills.

6.  The applicant’s RPAS (Retirement Points Accounting System) statement
indicates, for the retirement year ending on 7 July 2000, that the
applicant accumulated 69 retirement points (38 for inactive duty, 15 for
membership, and 16 for annual training/active duty for training) during
that 12 month period.  The statement indicates that in subsequent
retirement years the applicant merely received his 15 membership points.

7.  On 25 May 2001 orders were issued by the 81st Regional Support Command
(a United States Army Reserve organization) releasing the applicant from
his assignment with the 5th Medical Group and reassigning him to the United
States Army Reserve Control Group (Reinforcement) effective 1 May 2001 for
“failure to accept promotion.”  The applicant was subsequently discharged
from the United States Army Reserve on 16 November 2001.  The basis for his
discharge was cited as Army Regulation 135-175 (M6).  “M6” was a code used
by the United States Army Reserve Command to denote an individual separated
by reason of failing to meet medical retention standards.

8.  Prior to the applicant’s November 2001 discharge from the United States
Army Reserve, but subsequent to his June 1999 release from the Alabama Army
National Guard, the applicant apparently attempted to resolve the issue of
the line of duty investigation via correspondence with officials from the
Alabama Army National Guard.  A July 2000 letter from the Army National
Guard Staff Judge Advocate noted that Army Regulation 600-8-1, paragraph 41-
9, “prevents the AL ARNG [Alabama Army National Guard] from finding that
your injuries were sustained ‘in line of duty’.”  The letter went on to
note that the applicant was scheduled for drill on March 13 and 14, 1999
and that his injuries were sustained on 12 March 1999, approximately 240
miles from his drill location.  It concluded that the applicant was not on
orders for 12 March and that his home of record was Alabaster, Alabama.  A
subsequent letter, from the State Adjutant General, dated 8 August 2000,
stated that “home of record determines eligibility for a line of duty
investigation” and that the 12 March 1999 “accident report” showed the
applicant’s home of record as “Alabaster, Alabama.”  He concluded by
stating that he saw “no evidence at this time that the accident which you
were involved in occurred while you were traveling to drill but rather to
home to attend drill the next day.”

9.  A July 2001 statement, provided by the applicant’s employer, noted that
the applicant was hired by the Mississippi Band of Choctaw Indians,
Department of Family & Community Service, on 22 February 1999, and that he
had established a residence in Meridian, Mississippi.  The letter noted
that the applicant was “on his way to Alabama from his residence in
Meridian” on 12 March 1999.

10.  Medical documents provided by the applicant indicated that he
continued to have follow-up appointments with a urology clinic throughout
1999 after his release from the hospital on 16 March 1999.  An April 2003
medical summary, provided by the applicant in support of his request, notes
that during a 7 April 1999 appointment the applicant was “doing well with
some pain and some difficulty sleeping.”  He was advised to “continue
nonweight bearing on the right for three more weeks” and to “see a
psychologist to get him through the difficulties with driving and things.”
He returned for a follow-up appointment on
6 May 1999 and it was noted that he was “walking a little and he is to use
a cane for support.”  During the 6 May visit it was reported that the
applicant “has developed tenderness in his left elbow” and that by his 16
June 1999 visit he was “doing pretty well overall” but having some “soft
tissue problems and pain” and a “lot of sciatic nerve area related pain and
some other problems.”  He was to start physical therapy.  By his September
1999 visit he was “having some cramping sensation in his legs that did not
exist previously” but his pelvis was stable and his “x-rays look good.”

11.  Medical documents submitted by the applicant indicate that he
continued to have recurring medical appointments associated with residual
complications from the March 1999 motor vehicle accident.

12.  By 14 August 2001 the Alabama Army National Guard resolved the issue
of the applicant’s home of record and initiated a formal line of duty
investigation to determine if injuries sustained by the applicant as a
result of the March 1999 motor vehicle accident were considered to have
occurred in the line of duty.  The following year, on 29 July 2002 an, “in
line of duty” determination was approved on behalf of the Chief, National
Guard Bureau.

13.  In December 2002, as a result of the finding that the applicant’s
injuries were incurred in the line of duty, the applicant’s appeal to the
Department of Veterans Affairs was approved.  He was granted a combined
disability rating of 70 percent by the Department of Veterans Affairs
retroactive to 14 August 2000.  However, he was also granted entitlement to
the 100 percent rate effective that same date, because the Department of
Veterans Affairs concluded that the applicant was “unable to work due to
[his] service connected disability/disabilities.”  There were no documents
available to the Board that indicated why the Department of Veterans
Affairs utilized the 14 August 2000 date as the date the applicant’s
entitlements commenced.

14.  An 18 November 2002 letter to the Board, from the Adjutant General of
the Alabama Army National Guard, requested that the Board consider the
applicant’s request.  He noted that the applicant’s “chain of command
failed to complete a Line of Duty (LOD) Investigation at the time of the
incident” and that the National Guard Bureau had since approved the LOD.
He noted that his “staff has processed incapacitation pay from March 1999
to June 1999 for which he [the applicant] was entitled and [was]
coordinating with the medical treatment facility to make payment on medical
bills related to his line of duty accident.”  However, the Adjutant General
did note that because the applicant was no longer a member of the Army
National Guard he “was unable to assist him with his request to be
medically boarded through appropriate channels.”

15.  In a 4 September 2003 letter to the Board, the Governor of Alabama
asked that the Board “issue an order to him that will allow the National
Guard to pay [the applicant] any amounts owed to him during the period he
served in the United States Army Reserve in Birmingham, Alabama or after
his discharge from the Army.”

16.  Department of Defense Directive 1241.1 (Reserve Components
Incapacitation Benefits) notes that “line of duty” is the duty status and
conduct of a member at the time an injury, illness, or disease is incurred
or aggravated by military service.  It states that an injury, illness, or
disease occurred in the line of duty if it was incurred or aggravated while
performing active duty, while on authorized leave or liberty there from,
while performing inactive duty training, or while traveling directly to or
from such duty.

17.  Army Regulation 135-381 establishes procedures and policies and
implements statutory authorities regarding medical, dental,
hospitalization, and disability benefits; incapacitation compensation; and
death benefits; as well as reporting requirements on these entitlements for
Reserve component soldiers.

18.  Soldiers in an inactive duty training (IDT) status, including those
traveling directly to or from such status, are authorized emergency
civilian (such as that provided by paramedics to save the life, limb, or
eyesight of a Reserve component soldier) services; and medication, and
outpatient treatment (such as physical therapy, x-rays, cast removal,
clinical visits) at a medical treatment facility (MTF).  Non-emergency care
furnished by a private hospital, clinic, dentist, physician, nurse, or
other authorized health care provider, unless prior written approval is
obtained in advance is not authorized at government expense (regardless of
line of duty status).  Medical treatment will be provided to Reserve
component soldiers in Army treatment facilities whenever possible.  Non-
emergency care by civilian health care providers is not authorized unless
prior approval is obtained from the supporting Army MTF commander.
Approval must be obtained in writing.  Care obtained without prior approval
from the supporting Army MEDDAC (Medical Activity) may require payment by
the soldier.

19.  Section 204, title 37, United States Code provides authority for
continuation of pay and allowances under certain circumstances 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 allowances.  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 requests will be approved for payment
beyond the 6 months limits and then only with the approval of the Secretary
of the Army.  The period of time in which a soldier receives incapacitation
pay is not creditable service for “active” duty purposes.

20.  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 Army
Regulation 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.

21.  Physical evaluation boards are established to evaluate all cases of
physical disability equitably 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant’s 12 March 1999 injuries were
sustained in the line of duty.  As such, the applicant may be entitled to
incapacitation pay and reimbursement for some of his medical expenses.
However, it is noted that the Adjutant General of the Alabama Army National
Guard related in his correspondence to the Board that his “staff has
processed incapacitation pay from March 1999 to June 1999 for which he [the
applicant] was entitled and [was] coordinating with the medical treatment
facility to make payment on medical bills related to his line of duty
accident.”

2.  In view of that statement, the Board defers rendering any determination
on those issues until the applicant and the Alabama Army National Guard
have completely resolved those monetary issues.

3.  In the event that the monetary issues are not resolved the applicant is
advised to submit an application for resolution of his entitlement to
incapacitation pay to this Board and include all documents associated with
the amounts of incapacitation that he received, and evidence which supports
his contention that additional payments should have been made.

4.  In the event that issues associated with the reimbursement of medical
expenses are not resolved, the applicant is advised that disputes over the
amounts of payment are better determined between the applicant and the
Department of Defense Health Affairs Office and not by the Army Board for
Correction of Military Records.  He is advised that after completion of
reimbursement actions by the Alabama Army National Guard he should submit
claim for reimbursement of additional medical expenses to The Department of
Defense Health Affairs Office to adjudicate entitlement to any additional
reimbursement.

5.  It can be concluded, based on available evidence, that injuries
resulting from the motor vehicle accident may have rendered him unfit for
continued military service.  As such the applicant should be afforded the
opportunity for processing via the Army’s physical disability evaluation
system.

6.  In view of the foregoing, the applicant’s records should be corrected
as recommended below.

BOARD VOTE:

__JP____  __KF ___  __JD____  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief.  As a result, the Board
recommends that all of the Department of the Army records related to this
case be corrected by directing that the Commander, United States Army Human
Resources Command – St. Louis, contact the applicant and arrange, via
appropriate medical facilities, for a MEB, and if necessary a PEB.  That
commander is directed to use appropriate travel orders, as necessary, to
accomplish this purpose.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends that so much of the application that pertains to
entitlement to incapacitation pay, and reimbursement for medical expenses,
be deferred until finalization of actions by the Alabama Army National
Guard and the Department of Defense Health Affairs Office has adjudicated
resolution of any medical expenses.





            ____ Jennifer Prater______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003094856                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040608                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |