MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 21 August 2003
         DOCKET NUMBER: AR2003086627

         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. John N. Slone		Chairperson
Mr. Roger W. Able		Member
Ms. Regan K. Smith		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: Through counsel, in effect, that his records be corrected to show that he served on active duty from 30 April 2001 to the present, and that he be given the pay, service credit and benefits that such a correction would necessitate. In the alternative, he requests that he be given incapacitation pay for the period 1 November 2001 to the present. The applicant emphasizes that incapacitation pay is not his preferred option, that his actual entitlement is to active duty pay.

APPLICANT STATES: Through counsel, that he was ordered to active duty to serve in Kosovo on 8 August 2000, and served in Kosovo from 7 September 2000 to 9 April 2001. While in Kosovo he was injured twice in line of duty; one injury to his knee, and the other to his back and ribcage.

He was not retained on active duty as required by Army regulations for reservists injured on more than 30 days of active duty. The Army’s failure to retain him on active duty worked great harm upon him.

Since his unit did not retain him on active duty as it was required to do, he was processed for incapacitation pay. However, he didn’t receive his first payment until September 2001, and was only paid from his date of his release from active duty to 28 October 2001. Of these payments, his September and October payments were unduly delayed due to the incompetence of the staff of his higher headquarters. That incompetence also resulted in his request for additional incapacitation pay being mishandled, delayed and eventually lost. Requests for assistance in processing his request for additional incapacitation pay made by both him and his counsel have been fruitless, with the staff even telling his counsel to “Talk to a Congressman.”

In support of his request, he submits:

         - a copy of his orders directing him to report for 270 days of active duty on 24 August 2000;

         - an approved line of duty (LOD) investigation for a right knee ACL tear incurred on 17 October 2000 while playing basketball. The LOD stated that the applicant had previously injured the same knee in 1997;

         - an approved LOD investigation for rib dysfunction, 5^th and 6^th subluxation with muscle spasms, incurred on 7 December 2000 while reportedly lifting a patient from one stretcher to another stretcher;




         - electronic mail (e-mail) concerning the lack of cooperation by his higher headquarters in processing his incapacitation pay requests;

         - an incapacitation pay monthly claim form, in which he claims he lost $5,520 in September due to his LOD injuries; and

         - a formal Physical Evaluation Board (PEB) Proceeding, in which he was determined physically unfit to perform his duties due to left sided chest pain following injury on 5 December 2000, pain attributed to rib dislocation with neurologically derived pain secondary to nerve root irritation (neuritis) (20 percent disabling), and due to tourniquet palsy distal right aciatic nerve following knee surgery in August 2001, manifested by decreased sensation, easy fatigue and weakness, mild atrophy of the calf, asymmetric decreased achilles reflex and positive electro diagnostic studies. (10 percent disabling). The PEB recommended that the applicant be placed on the Retired List, rated 30 percent disabled.

EVIDENCE OF RECORD: The applicant's military records do not contain the applicant’s service computation or health records.

Army Regulation 635-40, paragraph 3-7, states that a soldier whose normal scheduled date of nondisability retirement or separation occurs during the course of hospitalization or disability evaluation may, with his or her consent, be retained in the service until he or she has attained maximum hospital benefits and completion of disability evaluation if otherwise eligible for referral into the disability system.

Army Regulation 135-381, paragraph 7-2, requires reservists who are eligible for retention on active duty due to a physical disability to submit an affidavit requesting retention on active duty. This affidavit must be submitted prior to a reservist’s release from active duty, must be endorsed by the Medical Treatment Facility (MTF) commander, and must be approved by the commander exercising general court-martial authority.

Army Regulation 135-381 and Title 37, U.S. Code, section 204, provide 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 due to the LOD injury. 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.

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. Notably absent in the applicant’s request and military records are his medical records.

2. The applicant has not submitted any documentation which would show that he was hospitalized or in a hospitalized status when he was released from active duty, nor has he submitted documentation to show that a Medical Evaluation Board had been initiated on him while he was on active duty. Without such documentation, he has not shown that he was eligible to be retained on active duty. In addition, there is no evidence that the applicant submitted a request to be retained on active duty, which is a prerequisite for retention.

3. The applicant’s delay in receiving incapacitation pay is regrettable, but has no bearing on whether his failure to be retained on active duty, or whether his failure to receive additional incapacitation pay, was an error or injustice.

4. While not stated by the applicant or clearly outlined by the documents he submitted, it would appear that he received the 6 months limit of incapacitation pay provided by law. The request that his counsel alleges was lost by the applicant’s higher headquarters appears to have been a request for an extension of incapacitation pay beyond the 6-month statutory limit.

5. Since law and regulation specify that it must clearly be in the interest of fairness and equity to extend incapacitation pay beyond 6 months, medical records detailing exactly what occurred in the applicant’s case would have to be reviewed. The applicant’s right knee ACL tear, incurred while playing basketball, was the same knee he injured in 1997, and is stated to have become physically unfitting by the PEB due to tourniquet palsy following knee surgery in August 2001, which was subsequent to his release from active duty. Since the applicant apparently completed his tour of active duty and was performing his duties up to the date he was released from active duty, the medical history of both the applicant’s rib dysfunction and right knee ACL tear would have to support a finding that it would be in the interest of justice to extend his incapacitation pay beyond the 6 month maximum.



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

___JNS__ ___RKS _ ____RWA DENY APPLICATION

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

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INDEX

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