RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        17 October 2006
      DOCKET NUMBER:  AR20060003717


      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. Dean L. Turnbull              |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Mr. Peter B. Fisher               |     |Member               |
|     |Mr. Rowland C. Heflin             |     |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 he be given incapacitation pay
for the period May 2004 to October 2004.

2.  The applicant states, in effect, that he received incapacitation pay
for the period November 2003 to April 2004, in accordance with Army
Regulation  
135-381 (Incapacitation of Reserve Component Soldiers), due to an injury
sustained at his Army Reserve drill.  He states that his injury was so
severe that he was discharged for medical reasons.  He also states that his
unit processed a request for an additional six months of incapacitation pay
but it was denied by the National Guard Bureau (NGB) based on fiscal year
limitations.  He then requested assistance from the Inspector General
Office to have his packet sent forward.

3.  He further states that there were several mistakes that kept the
request for the 6 month extension from arriving at the appropriate office
in a timely manner.  Also, due to unfamiliarity of the type of personnel
action by everyone involved, he should not be held responsible for
administrative delays that are technically not his fault.

4.  The applicant provides:

     a.  a copy of a letter from the Department of Veterans Affairs (VA),
Central Arkansas Veterans Healthcare System, dated 14 September 2004, which
states that the applicant was still under treatment for his injury;

     b.  a copy of a statement from his employer, dated 20 September 2004,
which states that the applicant was having difficulty performing his duties
at work;

     c.  a copy of a letter from his commander, dated 31 May 2005, which
shows that his commander requested an extension of incapacitation pay.  In
that letter it was stated that the applicant was not physically capable of
performing his duties as a Cable Systems Installer-Maintenance, because of
his medical condition.  His commander also stated that the applicant did
not attend all of his Multiple Unit Training Assemblies (MUTA) and Annual
Training (AT) since November 2003; and

     d.  a copy of his medical progress notes which state that the
applicant was working at his unit when his right foot was anchored in mud
and he twisted his body to the left after he was called by someone.  At
that time he felt intense pain that radiated down the back of his right
lower limb which caused him to fall to his

knees.  Since that time he has had limitations in working and physical
activities with decreased muscle strength and dysesthesia/paresthesia in
the right hip and calf regions.  The medical progress notes further state
that the applicant had the right sciatic nerve distended which caused
paresthesia, mild weakness and limitations to the muscles of L4-L5 and S1
on the right side.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 27 May 2005, the date he was released from the Army National
Guard.  The application submitted in this case is dated 21 February 2006.

2.  The applicant's records show that he was assigned to the Headquarters,
212th Signal Battalion, Arkansas Army National Guard.

3.  The medical progress notes show that sometime on 1 April 2003, while on
weekend drill, the applicant claimed that when his right foot was anchored
in mud, he twisted his body to turn to the left.  This resulted in a pain
in his back which caused him to drop to his knees.  The applicant was
treated for an injury to his lower back and right hip and was diagnosed
with lower back pain abnormality.  It was also noted that he had failed his
physical fitness test twice due to the intense pain in his right leg and
lower back.

4.  He was honorably released from the Army National Guard on 27 May 2005,
for being medically unfit for retention.

5.  There is no record of a DA Form 2173 (Statement of Medical Examination
and Duty Status) that show that the applicant was injured in the line of
duty.

6.  There is no record that shows the applicant was treated by a Medical
Corps Officer for his injury.

7.  There is no evidence that the applicant was considered by a Medical
Evaluation Board (MEB) or Physical Evaluation Board (PEB).

8.  Army Regulation 135-381 and Title 37, U.S. Code, section 204, provides
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.  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.  Only in the most meritorious cases will
incapacitation pay be extended past the 6-month limitation.

9.  Army Regulation 635-40 provides that the medical treatment facility
commander with the primary care responsibility will evaluate those referred
to him and will, if it appears as though the member is not medically
qualified to perform duty or fails to meet retention criteria, refer the
member to an MEB.  Those members who do not meet medical retention
standards will be referred to (PEB) for a determination of whether they are
able to perform the duties of their grade and military specialty with the
medically disqualifying condition.

10.  Line of duty investigations are conducted to determine whether
misconduct or negligence was involved in the disease, injury or death and,
if so, to what degree. Depending on the circumstances of the case, an
investigation may or may not be required to make this determination.
Investigations can be conducted informally by the chain of command where no
misconduct or negligence is indicated, or formally where an investigating
officer is appointed to conduct an investigation into suspected misconduct
or negligence.

11.  Documentation for an informal investigation typically consists of
Statement of Medical Examination and Duty Status completed by the Medical
Treatment Facility (MTF) and the unit commander, and approved by the
appointing authority, state Adjutant General or higher authority.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests incapacitation pay for the period May 2004
through October 2004.

2.  To receive an additional six months of incapacitation pay, the
applicant must submit documents showing that he was either unable to
perform his normal military duties or that he had a loss of nonmilitary
income.  In addition, the Secretary of the Army must find that it is
clearly in the interest of fairness and equity to extend the incapacitation
pay beyond the 6-month limitation for such compensation.

3.  In this regard, the applicant did not submit any documentation from a
Medical Corps Officer showing that he was unable to perform his normal
military duties.  The letter from the applicant’s commander is insufficient
to establish medical inability to perform normal military duty.  As such,
the applicant does not meet the criteria for incapacitation pay in the form
of his full military pay and allowances.
4.  As for incapacitation pay in the form of reimbursement of lost civilian
income, the letter from the VA does not state that the applicant was unable
to work his civilian job.  In addition, the applicant’s employer at the
time stated that while the applicant was having difficulty in performing
his custodial duties and that he was suffering from back and right hip
pain, his employer does not say that he couldn’t work because of his
injury.  Therefore, the employer statement is actually evidence that the
applicant was working during the period in question.  As such, the
applicant does not meet the criteria for incapacitation pay the form of
reimbursement of lost civilian income.

5.  Since the applicant has not submitted any evidence to show that he met
the criteria for incapacitation pay, he certainly does not meet the
criteria for an extension of incapacitation pay beyond the 6-month
limitation.  As such, there is no error or injustice in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___pbf___  ___rch__  ____jtm__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




                                  _________John T. Meixell______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060003717                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061017                                |
|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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