RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           1 September 2005
      DOCKET NUMBER:  AR20040009524


      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. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Stanley Kelley                |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Mr. Richard T. Dunbar             |     |Member               |

      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, payment for service/duty performed
between 1979 and 1986 under incapacitation pay guidance; and
reconsideration for payment for duty performed from 1994 to 1995 in the
rank of colonel (COL) following a date of rank adjustment by the Army
Special Selection Board (SSB).

2.  The applicant states, in effect, the Army Board for Correction of
Military Records (ABCMR) issued a favorable decision in May 1999.  He
claims that investigative, legal and administrative remedies for this
injustice took from 1979 to 1999 to make their way to the ABCMR.  A
parallel and simultaneous appeal to the Department of Veterans Affairs (VA)
requesting a line of duty and service connected injury decision for
injuries received in a January 1979 parachute operation resulted in a
favorable determination by the VA in January 2000.

3.  The applicant provides a copy of the original ABCMR decisional document
and 38 exhibits at tabs identified as A through AN in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number
AR1998012670 on 10 March 1999.

2.  The applicant’s record shows he was honorably discharged from the Texas
Army National Guard (TXARNG) on 16 November 1979, and transferred to the
United States Army Reserve (USAR) Ready Reserve.  He was promoted to major
on 17 June 1982, to lieutenant colonel on 16 June 1989, and to COL on
22 May 1995.  His record provides no medical treatment records indicating
he suffered from a medical condition that rendered him unable to perform
his military duties during his military service tenure.

3.  During its 1999 review, the Board found sufficient evidence to support
the following corrections to the applicant’s record:  removal of an Officer
Evaluation Report (OER) for the period 1 January through 31 October 1979;
amendment of an OER for the period 1 February through 31 December 1978;
promotion reconsideration to COL and Brigadier General (BG) by a Special
Selection Board (SSB), and assignment of an appropriate date of rank if
selected; and award of 114 retirement points for each retirement year
ending on 8 July 1980 through 8 July 1985.  All relief requests in excess
of these recommendations, which included requests for compensatory damages
including back pay, were denied by the Board.
4.  The applicant’s record provides no indication that the injuries he
received in the line of duty during a parachute jump in 1979 rendered him
unfit to perform his military duties, or resulted in a loss of civilian
income.

5.  The applicant provides medical treatment records and rating decision
documents from the VA.  The rating decision documents indicate he was
originally given an overall combined physical disability rating of 40
percent (%) in January 2000.  This increased to 50% in April 2001.  The
combined disability rating from the VA was based on the following service
connected medical conditions:  lumbosacral strain with degenerative disc
disease (20%); lateral femoral cutaneous nerve injury, right upper thigh
(10%); post traumatic avulsion injury, right hip, (10%); tinnitus (10%);
fracture, ribs (0%); bilateral hearing loss (0%); and bursitis, right
shoulder (10%). A rating decision in July 2002 resulted in a determination
that the bursitis and tendonitis, right knee and left knee were 0%
disabling.

6.  Army Regulation 135-381 (Incapacitation of Reserve Component Soldiers)
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 (RC) Soldiers.
The regulation in effect prior to 14 November 1986, provided entitlement to
full pay and allowances without regard to the loss of civilian employment
income, if it was determined the Soldier was unable to perform “normal
military duties.”

7.  Public Law 99-661, 14 November 1986, changed the method the Army used
for determining entitlement to incapacitation pay.  Under this law,
entitlement to incapacitation pay was governed strictly by a Reservist
demonstrating a loss of civilian income.  If a Reservist lost civilian
income as a result of an injury or disease incurred while performing
official military duties, the Reservist would be reimbursed up to, but not
to exceed, the active duty pay and allowances he or she would receive for
their military pay grade and years of service.

8.  Title 38, United States Code, sections 1110 and 1131, permits the VA to
award compensation for a medical condition which was incurred in or
aggravated by active military service.  The VA, however, is not required by
law to determine medical unfitness for further military service.  The VA,
in accordance with its own policies and regulations, awards compensation
solely on the basis that a medical condition exists and that said medical
condition reduces or impairs the social or industrial adaptability of the
individual concerned.  The VA can evaluate a veteran throughout his
lifetime, adjusting the percentage of disability based upon that agency's
examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim of entitlement to back pay as a COL for the
period 1994 to 1995 was carefully considered.  However, the applicant has
provided insufficient evidence to support amendment of the original ABCMR
decision on this issue.  His claim of entitlement to incapacitation pay for
the period 1979 through 1986 was also carefully considered.  However, there
is insufficient evidence to support this claim.

2.  Under current law and regulation, the purpose of incapacitation pay is
to compensate Reservists for the loss of civilian income experienced as a
result of an injury or disease incurred while performing military duties.
If a Reservist experiences a loss of civilian income as a result of an
injury or disease incurred while performing official military duties, the
Reservist is reimbursed up to, but not to exceed, the active duty pay and
allowances authorized for their military pay grade and years of service.
Although it is clear the applicant was injured in a parachute jump in the
line of duty, there is no indication that this injury resulted in his
losing civilian income.

3.  The law and regulation governing incapacitation pay prior to 14
November 1986, provided entitlement to full pay and allowances without
regard to the loss of civilian income if it was determined a RC Soldier was
unable to perform military duties.  However, the applicant fails to provide
any evidence that the injuries he incurred in the line of duty in 1979
rendered him unable to perform his military duties.

4.  The medical evidence and VA rating decision documents provided by the
applicant confirm he suffers from the identified service connected medical
conditions.  However, this factor alone does not provide a basis for
incapacitation pay, or for medical retirement.  The VA is not required by
law to determine medical unfitness for further military service.  The VA,
in accordance with its own policies and regulations, awards compensation
solely on the basis that a medical condition exists and that said medical
condition reduces or impairs the social or industrial adaptability of the
individual concerned.  As a result, the VA determinations do not provide
support for incapacitation pay, or medical retirement.

5.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

6.  Lacking any evidence of record, or independent evidence from the
applicant, confirming the injuries he incurred in the line of duty during a
1979 parachute jump rendered him unfit to perform his military duties, or
resulted in the loss of civilian income, there is an insufficient
evidentiary basis to support granting the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___SK __  __BJE___  ___RTD _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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 to award incapacitation
pay, or to amend the decision of the ABCMR set forth in Docket Number
AR1998012670, dated 10 March 1999.




            ____Stanley Kelley_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040009524                           |
|SUFFIX                  |                                        |
|RECON                   |AR1998012670 1999/03/10                 |
|DATE BOARDED            |2005/09/01                              |
|TYPE OF DISCHARGE       |N/A                                     |
|DATE OF DISCHARGE       |N/A                                     |
|DISCHARGE AUTHORITY     |N/A                                     |
|DISCHARGE REASON        |N/A                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. CHun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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