RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           25 October 2005
      DOCKET NUMBER:   AR20050000899


      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. Edmund P. Mercanti            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Jose A. Martinez              |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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 that he be given incapacitation pay for the
period 18 April to 17 May 1985.

2.  The applicant states that the pain from his back and the side effects
of the narcotic medication he was given for the pain adversely affected his
ability to concentrate and focus and to do even simple tasks.  He needed to
lie down several hours a day and was unable to complete a normal workday on
a regular basis, military or otherwise.

3.  The applicant provides:

      a.  a letter dated 15 September 1986 which denies the applicant’s
request for incapacitation pay.  In that letter it was stated that there
was no evidence that the applicant was determined unfit by military medical
authority to perform his normal military duties;

      b.  various documents pertaining to the applicant’s attempts to get
his civilian medical bills paid and to be paid incapacitation pay;

      c.  medical records, to include an admission record which stated that
the applicant was hospitalized on 21 April 1985 with a severely acute
damaged disc syndrome.  The physician stated that “I felt that the problem
was brought on by a lot of riding in a jeep the week before while on
maneuvers with the National Guard.  I think there was an aggravation of his
pre-existing generalized lumbar disc problem”;

      d.  a medical progress note which stated that the applicant, a
lieutenant colonel serving as the legal officer of a US Army Reserve (USAR)
Civil Affairs Company, reported riding in a jeep during weekend drill with
his unit.  He reported doing his normal routine on Monday and Tuesday, with
his back starting to hurt Wednesday night; and

      e.  a DA Form 2173, Statement of Medical Examination and Duty Status,
which shows that the applicant was on inactive duty training (weekend
drill) on 13 and 14 April 1985, and was admitted to the hospital for back
pain on 21 April 1985.  The applicant’s back pain was approved as in line
of duty.




CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 15 September 1986, the date his incapacitation pay request was
denied.  The application submitted in this case is dated 8 January 2005.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  32 USC, Section 318, governed entitlement for incapacitation pay for
disabilities incurred before 15 November 1986.  It provided that if a
disability incurred while performing duty continued beyond the termination
of orders, and the member was unfit to perform normal military duty per
medical authority, the member is entitled to active duty pay and allowances
and medical benefits commensurate with the Regular forces.  The entitlement
was not affected by resumption of normal civilian occupation.  The law did
not include language concerning termination of such pay.

DISCUSSION AND CONCLUSIONS:

1.  While the applicant has submitted documents showing that he received
medical treatment for his back pain, he has not submitted any documents
showing that he was unable to perform his normal military duties.  As such,
he was properly denied incapacitation pay.

2.  In addition, the law which provided for incapacitation pay at the time
the applicant experienced back pain stated that this pay was authorized for
disabilities which were incurred on a duty status and continued beyond the
termination of that military duty.  The applicant has never stated that he
was disabled on weekend drill.  He simply attributes his back pain to
riding in a jeep while on weekend drill even though he didn’t experience
back pain for several days after the weekend drill had ended.

3.  To summarize, the applicant is requesting incapacitation pay for an
existing prior to service (EPTS) condition which started to be painful
several days after the weekend drill, a time when the applicant had no
military status.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 15 September 1986; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 14 September 1989.  However, the applicant did not
file within the 3-year statute of limitations and has not provided a
compelling explanation or evidence to show that it would be in the interest
of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

____lmd__  ___jea__  ___jam__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




            _________James E. Anderholm_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050000899                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051025                                |
|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.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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