RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        15 March 2007
      DOCKET NUMBER:  AR20060007219


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Larry W. Racster              |     |Member               |
|     |Mr. Rodney E. Barber              |     |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 receive incapacitation pay
for the period 1 May 2001 through 30 September 2004.

2.  The applicant states, in effect, his Line of Duty (LOD) status was
changed and he is due incapacitation pay for the period 1 May 2001 through
30 September 2004.

3.  The applicant provides an Army National Guard (ARNG) Retirement Points
History Statement; a 31 August 2005 letter from the National Guard Bureau
(NGB) to the Massachusetts ARNG (MAARNG); a 12 December 2005 letter from
NGB to his Senator; an NGB Form 22 (Report of Separation and Record of
Service); his Honorable Discharge Certificate; and his discharge orders.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the ARNG on 25 March 1987.

2.  On 17 June 2000, on the first day of annual training, the applicant was
a passenger in a civilian truck when another civilian vehicle hit it.
After arriving at the training installation, he was treated for complaints
of neck, shoulder, and back pain.

3.  The applicant’s injuries were initially found to have been LOD – yes.
He was awarded incapacitation pay for the period 1 October 2000 through 30
April 2001. On 14 August 2001, the State requested incapacitation pay
beyond 6 months.
The reason for the gap between April and August cannot be determined.

4.  On 23 August 2001, after review by the Office of the Command Surgeon
for the Army National Guard Directorate, the LOD status determination was
changed to LOD – existed prior to service (EPTS) – Aggravation for this
Episode Only.  The applicant’s degenerative joint disease at multiple sites
was classified as  LOD – no – Not Due to Own Misconduct – EPTS – No
Aggravation.

5.  On 3 June 2005, after several appeals and after a review by The Office
of The Surgeon General, the NGB changed the applicant’s LOD status to LOD –
yes, EPTS with service aggravation.

6.  On 21 June 2005, the applicant was discharged from the ARNG and
transferred to the Retired Reserve by reason of being medically unfit for
retention after completing 15 years of qualifying service.  He earned his
15th qualifying year in retirement year ending 24 March 2003, when he
earned 15 membership points and 35 correspondence course points.
Retirement year ending 24 March 2002 was not a qualifying year.

7.  On 23 August 2005, the applicant’s commander provided a statement
certifying that the applicant was incapacitated from performing normal
military duties from October 2000 through June 2005.

8.  By memorandum dated 23 August 2005, the State again requested an
extension of incapacitation pay for the applicant.  By memorandum dated
     31 August 2005, NGB informed the MAARNG that the request for extension
of incapacitation pay beyond 6 months for the applicant was approved for
the period 1 October 2004 to 21 June 2005.  NGB could pay only for fiscal
year 2005, and the applicant would have to apply to this Board for the
period 1 May 2001 through 30 September 2004.

9.  Army Regulation 135-381 and Title 37, U.S. Code, section 204, provide
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.

10.  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.

11.  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 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 to ensure continuation of
incapacitation pay is warranted under this regulation, a review will be
made every 6 months.  Paragraph 1-11d states incapacitation pay will
continue as long as the conditions warranting the incapacitation pay exist
and the approving authority determines it is in the interest of fairness
and equity to continue the payment.  Paragraph 1-11e states 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.

12.  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.

13.  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.

14.  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.

15.  Department of Defense Instruction (DODI) 1241.2 (Reserve Component
Incapacitation System Management), dated 3 May 2001, paragraph 6.3.2.
states incapacitation pay in any particular case may not be made for more
than             6 months without review of the case by the Secretary
concerned to ensure that continuation of military pay and allowances is
warranted under this Instruction, and to determine whether the member
should be referred to the Disability Evaluation System.  Such review shall
be made every 6 months.

16.  DODI 1241.2, paragraph 6.3.2.1. states a member who remains not fit to
perform military duty 1 year after the initial date when the injury,
illness, or disease was first incurred or aggravated shall be referred to
the Disability Evaluation System if the member is not projected to be fit
for duty within the next 6 months.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant was injured in an automobile accident
on 17 June 2000, on the first day of annual training.  His injuries were
initially found to be LOD – yes and he was awarded incapacitation pay for
the period 1 October 2000 through 30 April 2001.

2.  Before a request for a 6-month extension of the applicant’s
incapacitation pay could be approved, his LOD status was changed to LOD –
no, EPTS.

3.  In June 2005, the applicant was discharged from the ARNG and
transferred to the Retired Reserve by reason of being medically unfit for
retention after completing 15 years of qualifying service.

4.  In August 2005, the applicant’s LOD status was changed to LOD – yes,
EPTS with service aggravation.  NGB then informed the MAARNG that the
request for extension of incapacitation pay for the applicant beyond 6
months was approved for the period 1 October 2004 to 21 June 2005.

5.  The applicant is requesting payment of incapacitation pay for the
period         1 May 2001 through 30 September 2004.

6.  On 23 August 2005, the applicant’s commander provided a statement
certifying that the applicant was incapacitated from performing normal
military duties from October 2000 through June 2005.  DODI 1241.2 states a
member who remains not fit to perform military duty 1 year after the
initial date when the injury, illness, or disease was first incurred or
aggravated shall be referred to the Disability Evaluation System if the
member is not projected to be fit for duty within the next 6 months.

7.  Based on the commander’s assessment of the applicant’s physical
condition, it appears the applicant should have been referred to the
Disability Evaluation System around June 2001.  It is unlikely his physical
disability processing would have been prolonged, since both his commander
and he (with his request for incapacitation pay) acknowledged that he was
unfit to perform his duties.  It is understood that had he been referred he
might not have been eligible for benefits (i.e., severance pay or
retirement; and if the applicant is currently receiving Department of
Veterans Affairs disability compensation, any severance pay or military
retired pay he might have received would have had to be waived in order to
receive such compensation); however, he still should have been referred.

8.  As it was, the applicant was retained in the MAARNG for another 5
years.  The failure to refer him to the Disability Evaluation System
enabled him to qualify for retired pay at age 60 (when he earned his 15th
qualifying year during retirement year ending 24 March 2003), a benefit he
would not have qualified for had the regulatory requirements been followed.

9.  Also as it was, the applicant received incapacitation pay for a period
of         14 months and 21 days (initially for 6 months from 1 October
2000 through       30 April 2001 and then for 8 months and 21 days from 1
October 2004 through 21 June 2005).  This is about the amount of time he
would have received incapacitation pay had the regulatory requirement
concerning referral to the Disability Evaluation System been properly
followed.

10.  The prospect of granting the applicant the additional incapacitation
pay requested plus allowing him to qualify for a Reserve retirement at age
60, which he would not have qualified for had he been referred to the
Disability Evaluation System around June 2001 as required by the regulatory
guidance, would be a windfall.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__mkp___  __lwr___  __reb___  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.




                                  __Margaret K. Patterson_
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060007219                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070315                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |128.14                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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