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                            RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            22 SEPTEMBER 2005
      DOCKET NUMBER:         AR20040011582


      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. Jessie B. Strickland          |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James Anderholm               |     |Chairperson          |
|     |Mr. Bernard Ingold                |     |Member               |
|     |Mr. Michael Flynn                 |     |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, that his active duty orders be
extended from 12 July until 21 July 2003.

2.  The applicant states that his orders should be amended to show him on
active duty from 12 July to 21 July 2003, because he was under a doctor’s
care and should not have out-processed to start his leave off of active
duty until he was released from the doctor’s care on 21 July 2003.

3.  The applicant provides a copy of his report of separation (DD Form
214), copies of his orders ordering him to active duty and releasing him
from active duty, copies of a definitive medical statement, a physician’s
statement and a Statement of Medical Examination and Duty Status.

CONSIDERATION OF EVIDENCE:

1.   On 3 September 2002, while serving in the pay grade of E-6 in the
Alabama Army National Guard (ALARNG), he was ordered to active duty with
his unit in support of Operations Nobel Eagle and Enduring Freedom for a
period not to exceed 365 days.  His report date to Fort Rucker, Alabama,
was 6 September 2002.

2.  On 21 May 2003, he underwent surgery at Fort Rucker to repair a Ventral
Hernia.  A physician’s statement dated 17 July 2003 indicates that he had
follow-up appointments scheduled for 16 June and 16 July 2003 and that the
applicant could return to full military duty effective 21 July 2003.

3.  On 3 June 2003, orders were published by the Army Aviation Center and
Fort Rucker, which released the applicant and 27 other members of his unit
from active duty effective 4 July 2003.  His orders specified that he was
entitled to medical benefits until 2 September 2003.

4.  Subsequent to the applicant’s release from active duty, the ALARNG
published orders authorizing the applicant incapacitation pay status for
the period of 5 July to 21 July 2003.  The orders also authorized him
travel to Fort Rucker for medical treatment/appointments.  The compensation
authorized was limited to an amount equal to the member’s lost civilian
earned income or Military Pay and Allowances, whichever was less.  His
orders also specified that he was not authorized to perform any type of
duty and that retirement points were not authorized during the period of
incapacitation.
5.  In the processing of this case a staff advisory opinion was requested
from the ALARNG which opined that the applicant received a statement from a
physician on 16 July 2003 which stated that he would be able to perform his
civilian and military duties on 21 July 2003.  Consequently, because he had
been released from active duty on 4 July 2003, the ALARNG authorized him
incapacitation pay for the period of 5 July to 21 July 2003.  It further
opined that the ALARNG had no control on when he was released from active
duty and could only compensate him with incapacitation pay.  Furthermore,
the only benefit he did not receive by being placed in that status was that
he did not accrue the retirement points he would have accrued had he
remained on active duty.

6.  The advisory opinion was provided to the applicant for comment and to
date, no response has been received by the staff of the Board.

7.  A review of the available records shows no indication that the
applicant requested to remain on active duty to receive his follow-up
appointment on 16 July 2003.

8.  Army Regulation 135-381, Incapacitation of Reserve Component Soldiers,
provides, in pertinent part, that on release from active duty or inactive
duty for training, a soldier may qualify for incapacitation pay benefits.
Soldiers are entitled to a portion of the same monthly pay and allowances
as provided members of the Active Army with corresponding grade, length of
service, marital status, and number of dependents for each period the
Soldier is unable to perform normal military duties or can demonstrate loss
of compensation from nonmilitary income.  Soldiers will not be issued
active duty orders in place of incapacitation pay as a means of providing
benefits to which they might otherwise not be entitled.  It further
provides that individuals injured while on active duty for more than 30
days may have their active duty orders extended to receive medical
treatment.  However, individuals will not be extended on active duty
without their written consent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should have been extended on active
duty until 21 July 2003 has been noted.  However, the applicant has failed
to show through the evidence submitted that he unjustly denied the
opportunity to remain of active duty for the purpose of attending his
scheduled follow-up appointment on 16 July 2003.

2.  He was released from active duty (REFRAD) on 4 July 2003, along with
other members of his unit due to completion of required service and had a
scheduled follow-up appointment for 16 July 2003.  There is no evidence
that he made this information known at the time of his REFRAD or that he
consented at the time to be extended for the purpose of medical treatment.

3.  The applicant has also failed to show through the evidence submitted
with his application that he was deemed unfit for separation or that he was
unjustly REFRAD.

4.  The applicant received incapacitation pay status from the ALARNG for
the period beginning immediately after his REFRAD (5 July 2003) until 21
July 2003, when he was deemed fit to return to duty.  Accordingly, there
appears to be no basis to grant his request.

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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JA___  ___BI ___  ___MF __  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 for correction of the
records of the individual concerned.



            ____James Anderholm__________________
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040011582                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050922                                |
|TYPE OF DISCHARGE       |(HD)                                    |
|DATE OF DISCHARGE       |2003/07/04                              |
|DISCHARGE AUTHORITY     |AR 635-200, CH 4                        |
|DISCHARGE REASON        |REFRAD                                  |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |189/corr dis date                       |
|1.110.0000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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