RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 April 2007
	DOCKET NUMBER:  AR20060013021 


	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.  



	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 beyond the 179 days he has already received, for a total of 3 years and 3 months of incapacitation pay.

2.  The applicant states that while he was on 2 weeks of active duty, he had an accident which ruptured one disc and herniated two other discs in his back.  After physical therapy and spinal injections failed to heal his injuries, they required surgical intervention.

3.  The applicant provides his complete military personnel records jacket.

CONSIDERATION OF EVIDENCE:

1.  On 2 June 2001 the applicant, a warrant officer assigned to the California Army National Guard (CAARNG), while performing 2-weeks annual training, was treated for a contusion to his right shoulder, neck, and lower back.

2.  In the processing of an informal line of duty investigation into the injuries, the applicant opted to make a statement.  In that statement he said that while showering in a bath tub at a hotel, he slipped on the soapy surface of the tub and fell completely out of the tub onto the floor.  He says he hit his back on the rim of the tub and landed on his right side.

3.  On 4 October 2004, the applicant was given permanent physical profile restrictions.

4.  On 9 October 2004, a narrative summary (NARSUM) was dictated for a medical evaluation board (MEBD).  In the functional status and prognosis portion of the NARSUM it was stated that the applicant reported spending his time doing house and yard work plus fishing and boating.  

5.  The MEBD determined that the applicant was medically disqualified due to lumbar spine degenerative disc disease.  The MEBD found that he also had the following conditions which met medical retention standards:  post-traumatic stress disorder, atypical chest pain, tinnitus, hearing loss, varicose veins, temporomandibular joint dysfunction, elevated cholesterol, hemorrhoids, and benign prostatic hypertrophy.

6.  On 4 November 2004, a physical evaluation board (PEB) determined that the applicant was physically unfit due to chronic low back pain status post spinal fusion L4/L5 for degenerative disc disease with radiculopathy, which had resolved since surgery.  The PEB recommended that the applicant be discharged with severance pay, rated 20 percent disabled.

7.  On 23 December 2004, the applicant sent a letter to the National Guard Bureau requesting additional incapacitation pay.  In that letter the applicant stated that he was unemployed when he had his accident, but had been actively looking for a job at that time and was sure that he would have found a job during 2001 if it had not been for his accident.  In that letter the applicant details his future monetary loss from his military retirement and Social Security as a result of his accident.

8.  The applicant opted to transfer to the Retired Reserve with entitlement to retired pay at age 60 instead of accepting severance pay.  Accordingly, on 15 March 2005, the applicant was transferred to the Retired Reserve.

9.  The applicant’s request for additional incapacitation pay was denied because the applicant had already been separated from the CAARNG.

10.  Army Regulation 135-381 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.

11.  Paragraph 2-1 of this regulation requires a Reservist requesting incapacitation pay to:

	e. Complete and submit an Incapacitation Pay Monthly Claim Form (DA Form 7574 (figure 2–2)) for each calendar month claimed.  The Soldier must: 

		(1) Accurately disclose income from nonmilitary earned income.  This is income from military employment, including self-employment and includes normal wages, salaries, professional fees, tips, or other compensation for personal services actually rendered, as well as income from income protection plans, vacation pays, and sick leave that the member elects to receive.  It does not include rents, royalties, retirement pays, dividends or interest, welfare payments, or other nontaxable Government benefits.

		(2) Notify the unit commander of any outside insurance settlements as a result of the injury, illness, or disease.  Civilian insurance settlements may not be counted as income, unless the payment is for lost income.

		(3) Notify the unit commander upon any changes of civilian work status if you are receiving incapacitation pay for loss of civilian earned income.  If you quit the civilian job where you were receiving loss of civilian earned income, your entitlement to incapacitation for loss of civilian income terminates.

		(4) Notify the unit commander if you are a student.  Students who cannot perform military duty will be paid for loss of military income.  Students claiming loss of civilian earned income can only receive incapacitation pay for this loss if they cannot perform the job they were doing when they became incapacitated.

			(a) Members who are in receipt of Department of Veterans Affairs (VA) benefits for the same injury, illness, or disease may elect to receive either military pay or VA pay under DOD 7000.14R, DOD Financial Management Regulation (FMR), volume 7A, chapter 57.
			
			(b) Provide all medical documentation pertaining to treatment received.  Military Physicians Statement of Soldiers Incapacitation/Fitness for Duty (DA Form 7574–1 (figure 2–3)) must be completed every 3 months.

			(c) If self-employed or have seasonal income, submit copies of Federal income tax forms.  Supporting documentation (including Schedule C) filed with the Internal Revenue Service (IRS) together with any claims made with or benefits paid by any income protection plan, must also be provided.

DISCUSSION AND CONCLUSIONS:

1.  The applicant is not entitled to incapacitation pay due to a loss of civilian income.  The applicant was unemployed.  While the applicant’s injury may have prevented him from obtaining civilian employment, there are no provisions to compensate a Reservist for a loss of potential civilian income.

2.  The applicant has not submitted any statements from military physicians attesting to his inability to perform normal military duties.  Without such statements, there is insufficient documentation in which to grant his request.

3.  Also, the applicant has not submitted the documentation required by Army Regulation 135-381 pertaining to the amount of money he received during the time he was incapacitated.  Without these statements, there is insufficient documentation in which to grant the applicant’s request.

4.  However, even if the applicant had submitted military physician statements and financial documents showing the amount of money he received during the time he was incapacitated, the applicant would still have to demonstrate that it is clearly in the interest of fairness and equity to extend his incapacitation pay past the 6-month limitation.  In the applicant’s case, he injured his back when he fell out of a bathtub and is still able to perform functions such as house and yard work , fishing and boating.  This is not an exceptionally meritorious case which would warrant extension of incapacitation pay beyond the 6-month limitation.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___klw___  ____lmd_  ____eif__  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.





_________Kenneth L. Wright_______
          CHAIRPERSON



INDEX

CASE ID
AR20060013021
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070410
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.