RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        7 December 2006
      DOCKET NUMBER:  AR20060004288


      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             |
|     |Ms. Wanda L. Waller               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Richard Dunbar                |     |Chairperson          |
|     |Mr. Dale DeBruler                 |     |Member               |
|     |Mr. Larry Racster                 |     |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 military records be
corrected to show the final determination of his Formal Line of Duty
investigation was “In Line of Duty.”  He also requests that his rank be
restored to sergeant; that he receive incapacitation pay for the period 16
October 1999 to 1 November 2003; and that he receive additional creditable
service for retirement purposes.

2.  The applicant states, in effect, that the final determination of his
Report of Investigation was changed by the National Guard Bureau to “In
Line of Duty –Existed Prior to Service with Service Aggravation” for pre-
existing facet joint arthrosis on 7 January 2004 which qualifies him for
incapacitation pay for the period 16 October 1999 to 1 November 2003.  He
also contends that he was reduced in grade for no reason and that he had 19
years, 11 months, and 28 days of service before his injury.

3.  The applicant provides a “Corrected Copy” DD Form 261 (Report of
Investigation), dated 19 November 2003; a memorandum, dated 7 January 2004;
a memorandum, dated 4 March 2004; and two letters, dated 22 February 2006
and 26 April 2006, from the Personnel Division, National Guard Bureau.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 27 March 1952.  Having prior active service
and inactive service, he enlisted in the Army National Guard on 10 January
1984 in the rank of sergeant.  On an unknown date, he was employed as a
military technician with his unit.

2.  A DA Form 4836 (Oath of Extension of Enlistment or Reenlistment), dated

1 February 1999, shows the applicant extended his current enlistment
(10 January 2001) for a period of 5 years.  His new expiration term of
service was 10 January 2006.

3.  The applicant provided a “Corrected Copy” DD Form 261 which states that
he injured his lower back on 16 October 1999 while performing the Sit-Up
event during the unit’s annual Army Physical Fitness Test.  Item 15 (Final
Approval) of this DD Form 261 states, in pertinent part, “Approved:  IN
LINE OF DUTY-EPTS-AGGRAVATION for pre-existing facet joint arthrosis.”

4.  A Physician’s Statement, dated 25 May 2000, shows the applicant was
found to be disabled/incapacitated for the performance of his military
duties and civilian occupation during the period 18 October 1999 to
present.  This medical record also states that the applicant was fit for
duty effective 24 June 2000.
5.  Five memorandums “For Attending Physician,” dated 25 May 2000, 28 June
2000, 1 August 2000, 28 August 2000, and 26 September 2000, indicate the
applicant was disabled/incapacitated from 10 October 1999 to “present.”
They also indicate, however, that he was fit for duty effective 24 June
2000, 24 July 2000, 24 August 2000, 24 September 2000, and 24 October 2000,
respectively.

6.  Orders, dated 21 September 2000, show the applicant was reduced from
sergeant to specialist for inefficiency effective 21 September 2000.

7.  A letter, dated 18 October 2000, from The Adjutant General of the
Virginia Army National Guard to a Member of Congress states that the
applicant was medically cleared by a military physician to return to his
full time duties as a military personnel clerk on 4 May 2000.  He was
notified of this through certified mail.  The applicant faxed an unofficial
document from his personal chiropractor that said he would be fit to return
to duty on 24 June 2000.  However, the applicant did not return to work.
He was sent a certified letter from his full time supervisor, which he
signed for on 10 August 2000, that advised him of the following:  report to
work or call his supervisor; if he had any health concerns it needed to be
addressed immediately so that the Department of Military Affairs could
schedule him for an examination; and if he decided not to report to work or
call his supervisor, he would risk termination of employment for
abandonment of position in accordance with Technician Personnel Regulation
715.  The applicant did not respond to the letter from his full time
supervisor.  He was then sent a certified letter from the Human Resources
Office, which he signed for on 28 August 2000. The letter advised him that
unless he reported to work or sent documentation from a medical doctor (not
a chiropractor, a chiropractor is not considered a medical doctor), the
effective date of his removal from full-time military technician status
would be at midnight on 8 September 2000.  He was given the Employee
Relations Specialist name and phone number to use if he had any questions
or wished to make an appeal.  The applicant did not respond to the letter
and was terminated as advised.

8.  The applicant was transferred to the inactive National Guard on 1
August 2002.

9.  The applicant provided a memorandum, date stamped 7 January 2004, from
the Chief, Personnel Division, National Guard Bureau, which states, in
pertinent part, that “All Army records are changed to reflect this new
finding (i.e. in Line of Duty Existed Prior to Service with service
aggravation) and provide [the applicant’s rank and last name] a copy of the
DD Form 261 corrected copy.”

10.  The applicant was released from the inactive National Guard on
20 September 2005 and transferred to an active status.  (There was also a
12 August 2004 order on file indicating he was in an active status in
August 2004.)

11.  On 10 January 2006, he was separated from the Army National Guard due
to expiration term of service.

12.  The applicant provided a letter, dated 22 February 2006, from the
National Guard Bureau which states that since the determination of his
Report of Investigation was changed to “In Line of Duty” this qualifies him
for incapacitation pay for the period 16 October 1999 to 1 November 2003.
This letter also states that the National Guard Bureau cannot authorize
that payment; however, the National Guard can pay for fiscal year 2005.
The applicant was advised to petition this Board for payment regarding
incapacitation pay for the period 16 October 1999 to 1 November 2003.

13.  In the processing of this case, further information was obtained from
the National Guard Bureau regarding the applicant’s incapacitation pay.  An
official at the National Guard Bureau stated that the applicant is entitled
to incapacitation pay from 17 October 1999 through 9 January 2006.
However, since the applicant separated in January 2006 the National Guard
Bureau is unable to determine if he received any incapacitation pay during
this period.

14.  The applicant’s Army National Guard Retirement Points History
Statement, prepared on 23 October 2006, shows he had 19 years, 11 months,
and 28 days of creditable service for non-regular retirement at age 60.  It
shows he earned a total of 45 points during retirement year ending (RYE) 25
May 2000; 15 membership only points during RYEs 25 May 2001, 25 May 2002,
31 July 2002; no points from 1 August 2002 through 19 September 2005 (while
in the inactive National Guard); and he earned 5 inactive duty training
(IDT) points during RYE 19 January 2006.

15.  National Guard Regulation 600-200 (Enlisted Personnel Management)
states, in pertinent part, that commanders may reduce Soldiers for
inefficiency.  Inefficiency is defined not only as technical incompetence,
but also as patterns or acts of conduct demonstrating that the Soldier
concerned lacks the abilities and qualities required and expected of a
Soldier of his or her rank and experience.  Commanders may consider any
act(s) of misconduct, to include conviction by a civil court, record of
unexcused absences or unsatisfactory participation (whether or not such
acts also result in disciplinary action) as evidence of inefficiency.

16.  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.

17.  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.

18.  Paragraph 1-11a of Army Regulation 135-381 states that incapacitation
pay will be paid only during the period a member remains unfit for military
duty or demonstrates a loss of earned income as a result of the
incapacitation.  Paragraph 1-11b states that payment in any particular case
may not be made for more than 6 months without review of the case by
appropriate headquarters.  Paragraph 1-11c states that to insure that
continuation of incapacitation pay is warranted under this regulation, a
review will be made every 6 months.  Paragraph 1-11d states that
incapacitation pay will continue as long as the conditions warranting the
incapacitation pay exist and the approving authority determines that it is
in the interest of fairness and equity to continue the payment. Paragraph 1-
11e states that when incapacitation lasts for over a year, the case should
be processed through the Disability Evaluation System for disability
separation or retirement.  Incapacitation pay will end upon retirement,
separation for physical disability, or determination by military service
medical personnel that the member has recovered sufficiently to perform
military duties, when actually returned to military duty, whichever comes
first.

19.  Army Regulation 135-381 states, in pertinent part, that in order to
qualify for Army disability benefits, Soldiers must have incurred or
aggravated an injury, illness, or a disease condition while in a duty or
travel status.  A finding that the injury, illness, or disease was incurred
or aggravated in the line of duty is mandatory to qualify for benefits.

20.  Paragraph 4-1e of Army Regulation 135-381 states prerequisites for
entitlement to incapacitation pay are inability to perform normal military
duties or satisfactory demonstration of loss of nonmilitary earned income.
In the latter case, the burden to prove loss rests with the Soldier.

21.  Army Regulation 135-381 states, in pertinent part, that Soldiers are
entitled to a portion of the same monthly pay and allowances as is 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 civilian earned income.

22.  Sections 12731 through 12740 of Title 10, U.S. Code, authorize retired
pay for Reserve component military service.  Under this law, a Reserve
Soldier must complete a minimum of 20 qualifying years of service to be
eligible for retired pay at age 60.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to correct his military records to show the
final determination of his Formal Line of Duty investigation was “In Line
of Duty” was noted.  However, based on the 7 January 2004 memorandum
provided by the applicant it appears that all of his Army records were
changed to reflect the new finding.  Therefore, no further action needs to
be taken on this portion of his request.

2.  Although the applicant contends that he was reduced in grade for no
reason, evidence of record shows he was reduced from sergeant to specialist
for inefficiency.  In the absence of evidence to the contrary, it must be
presumed that the applicant’s reduction in grade was correct.  Therefore,
there is no basis for granting the applicant's request to restore his rank
to sergeant.

3.  Although the applicant contends that he is entitled to incapacitation
pay for the period 16 October 1999 to 1 November 2003, and the National
Guard Bureau contends that he is entitled to incapacitation pay for the
period 17 October 1999 to 9 January 2006, medical evidence of record shows
he was found to be incapacitated for the performance of his military duties
and civilian occupation for the period 17 October 1999 through 23 June
2000.  Therefore, the available evidence warrants granting him
incapacitation pay for the period 16 October 1999 through 23 June 2000.

4.  The applicant’s Army National Guard Retirement Points History Statement
shows he completed 19 years, 11 months, and 28 days of creditable service
for a Reserve retirement, just two days short of being eligible for retired
pay at age 60. The applicant earned 45 retirement points during RYE 25 May
2000.  He earned 5 IDT points during RYE 10 January 2006.  It would be
equitable to redistribute the 5 IDT points he earned during RYE 10 January
2006 to RYE 25 May 2000.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

RD_____  _DD_____  __LR____  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief.  As a result, the Board
recommends that all Department of the Army records of the individual
concerned be corrected by:

      a.  paying him incapacitation pay for the period 16 October 1999
through 23 June 2000 after first auditing his pay records to determine if
the applicant has already been paid any incapacitation pay;

      b.  redistributing the 5 IDT points he earned during RYE 10 January
2006 to RYE 25 May 2000; and

      c.  issuing him a notification of eligibility for retirement pay at
age 60 (a 20-year letter).

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
restoring his rank to sergeant and paying him incapacitation pay for any
period beyond 23 June 2000.




                                  ____Richard Dunbar____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060004288                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061207                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |100.0000                                |
|2.                      |102.0200                                |
|3.                      |128.1400                                |
|4.                      |129.0100                                |
|5.                      |                                        |
|6.                      |                                        |


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