RECORD OF PROCEEDINGS


	IN THE CASE OF:     
	 

	BOARD DATE:          25 October 2005                    
	DOCKET NUMBER:  AR20050001533


	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 9 August 1999 to 31 July 2000.

2.  The applicant states that he was not aware that he was eligible for incapacitation pay.

3.  The applicant provides incapacitation payroll documents to cover the period in question.  These documents show that the applicant was unemployed during the period he is claiming.  The statements attesting to the applicant’s unfitness to perform his normal military duties and civilian occupation were signed by a physician who doesn’t indicate military rank in his title.

4.  The applicant also submits a DA Form 199, Physical Evaluation Board (PEB) Proceedings, which show that the applicant was determined physically unfit due to Parkinson’s disease on 12 March 2001 and placed on the Temporary Disability Retired List (TDRL).

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an alleged error which occurred on 31 July 2000.  The application submitted in this case is dated 12 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.  On 19 July 1990 the applicant, an Army National Guard (ARNG) Soldier in pay grade E-4, was lying on his cot during his unit’s annual training when he was struck by lightning.  This resulted in his hospitalization for 3rd degree burns to his buttocks and back areas.

4.  Parkinson's disease is a disorder of the brain characterized by shaking (tremor) and difficulty with walking, movement, and coordination.  The disease is associated with damage to a part of the brain that is involved with movement.  

5.  Parkinson's disease was first described in England in 1817 by Dr. James Parkinson.  The disease affects approximately 2 of every 1,000 people and most often develops after age 50.  Sometimes Parkinson's disease occurs in younger adults, but is rarely seen in children.  It affects both men and women and is one of the most common neurologic disorders of the elderly.  In some cases the disease occurs within families, especially when it affects young people.  Most late onset cases have no known cause.  

6.  The term "parkinsonism" refers to any condition that involves a combination of the types of changes in movement seen in Parkinson's disease, which is the most common cause of these symptoms.  Parkinsonism may be caused by other disorders (secondary parkinsonism) or by external factors like certain medications used to treat schizophrenia.  

7.  Parkinson's disease is caused by progressive deterioration of the nerve cells of the part of the brain that controls muscle movement.  Dopamine, which is one of the substances used by cells to transmit impulses, is normally produced in this area.  Deterioration of this area of the brain reduces the amount of dopamine available to the body.  Insufficient dopamine disturbs the balance between dopamine and other transmitters, such as acetylcholine.  Without dopamine, the nerve cells cannot properly transmit messages, and this results in the loss of muscle function.

8.  The exact reason that the cells of the brain deteriorate is unknown.  The disorder may affect one or both sides of the body, with varying degrees of loss of function.  In addition to the loss of muscle control, some people with Parkinson's disease become severely depressed.  This may be due to loss of dopamine in certain brain areas involved with pleasure and mood.  Lack of dopamine can also affect motivation and the ability to initiate voluntary movements.

9.  Although early loss of mental capacities is uncommon, with severe Parkinson's, the person may exhibit overall mental deterioration (including dementia and hallucinations). Dementia can also be a side effect of some of the medications used to treat the disorder.  Although rare, when Parkinson's is found in children, it appears to be due to decreased sensitivity of the nerves to dopamine rather than deterioration of the area of the brain that produces dopamine.  (MEDLINE PLUS)

10.  Army Regulation 135-381 provides the standards of eligibility for medical care, continuation of pay (incapacitation pay), and physical disability separation for reservists and guardsmen.  Paragraph 4-1 states that to be eligible for incapacitation pay reservists and guardsmen must be determined to be unable to perform normal military duty by military medical authority or show a loss of nonmilitary income, the individual must be disabled “while so employed,” and the disabling condition must have been incurred or aggravated while in a duty or travel status.

11.  On 11 September 2003 the Board’s staff notified the applicant that his military records did not contain his medical records, and provided him with the opportunity to provide those records.  He did not respond to that letter.

12.  On 7 July 2004, the Board’s staff administratively closed the applicant’s request, informing the applicant that without his military medical records, there was insufficient documentation for the Board to consider his request.

DISCUSSION AND CONCLUSIONS:

1.  The applicant is requesting incapacitation pay for a period which commences over 9 years after he was struck by lightning, with no medical records to show what occurred from the time of the lightning strike to the time he claims he should be entitled to incapacitation pay.

2.  The applicant was determined physically unfit and placed on the TDRL due to Parkinson’s Disease, which would not appear to be caused by a lightning strike.

3.  The applicant cannot be reimbursed for lost civilian income because he was unemployed during the period claimed.

4.  The applicant has not been certified to be unable to perform his normal military duties by military medical authority.  As such, he does not meet the criteria for incapacitation pay based on inability to perform normal military duties.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 31 July 2000; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 30 July 2003.  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
AR20050001533
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.