RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        18 December 2007
      DOCKET NUMBER:  AR20070003841


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Ms. Marla J. N. Troup             |     |Member               |
|     |Mr. Thomas M. Ray                 |     |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, payment of incapacitation pay for
the period August 2003 through July 2004.

2.  The applicant states, in effect, he is entitled to incapacitation pay
due to a medically documented condition.  He states that the medical
evidence related to his entitlement to this pay was not fairly and
objectively evaluated by the United States Army Reserve (USAR) Command
Surgeon.

3.  The applicant submits the 27 documents listed on the Index of Exhibits
provided in support of his application

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he is currently serving in an active
status in the United States Army Reserve (USAR), in the rank of lieutenant
colonel (LTC).

2.  The applicant's record shows that he was ordered to active duty in
support of Operation Enduring Freedom and entered active duty on 11 August
2002.  He served in Kuwait from 18 August 2002 through 23 April 2003 and in
Iraq from
24 April through 12 May 2003, and on 10 August 2003, he was released from
active duty, by reason of completion of required active duty service, and
was transferred to the USAR Control Group (Reinforcement).  The separation
document he was issued at the time shows he completed a total of 1 year of
active duty during the period covered by the report.

3.  On 6 February 2004, the Director of Casualty and Memorial Affairs,
United States Army Human Resources Command, Alexandria, Virginia
(HRC-Alexandria) notified the applicant that a presumptive finding of In
Line of Duty had been made in his case for a PTSD.  This official confirmed
the applicant had been diagnosed with a PTSD during his assignment to
Kuwait during the period 18 August 2002 through 10 August 2003.

4.  On 27 June 2005, the USAR Command Surgeon, United States Army Human
Resources Command, St. Louis, Missouri (HRC-St. Louis) notified the
applicant that his request for incapacitation pay was disapproved.  He
indicated that during the period in question (11 August 2003-12 July 2004),
the applicant had been medically cleared to work and to perform both
military and civilian jobs by Army, Air Force and Department of Veterans
Affairs (VA) physicians.

5.  The USAR Command Surgeon further confirmed that a review of the
applicant's records also showed that during the period in question, he had
diligently pursued employment, attended several job interviews, and had
refused job offers.  Based on these factors, the Command Surgeon concluded
it was reasonable to surmise that the applicant had not received the
preferable job offers, which while unfortunate, was not a basis to justify
incapacitation pay under the governing regulations.  An outline of findings
based on the review of the applicant's claim packet and the personnel file
maintained on the Soldier Management System was provided that contained the
following findings:

      Military Medical Records

      13 May 2003 - The applicant was initially evaluated by the Community
Health Clinic at Fort Benning, Georgia, based on symptoms related to
marital problems;

      17 July 2003 - While the applicant was still on active duty, a
Psychiatrist discussed Post Traumatic Stress Disorder (PTSD) and Partner
Related Problem (PRP) symptoms with the applicant;

      18 July 2003 - Applicant completed separation physical examination
and was medically cleared for retention/separation without limitation;

      21 July 2003 - Scott Air Force Base medical provider documented the
applicant's disposition as released without limitations, and the
applicant's record confirmed, in effect, he was capable of performing
duties world wide except in an imminent danger/combat area.  The released
without limitations notation appears on all the applicant medical treatment
records from Scott Air Force Base;

      21 November 2003 - VA medical provider's report contains the notation
that the applicant "continued to explore full time work" and also that the
applicant was given the chance to take a new position in the military if he
desired;

      1 December 2003 - VA records indicated the applicant continued to try
and find employment which was "elucing";

      15 December 2003 - VA medical records stated the applicant was
actively pursuing civilian employment and the VA healthcare providers noted
no contraindication for employment in the entire VA medical record; and

      23 February 2004 - VA medical records indicated that the applicant
reported receiving two job offers and that he was waiting for other job
offers.

      Soldier Management System (SMS) File

      16 July 2003 - While still mobilized, the applicant e-mailed the
HRC-St. Louis Legal Services Personnel Management Officer requesting that
positions he was being considered for be limited to the St. Louis area;

      21 August 2003 - Applicant e-mailed the HRC-St. Louis Legal Services
Personnel Management Officer indicating that he was still producing resumes
and getting leads but no bites yet;

      4 October 2003 - Applicant e-mailed the HRC-St. Louis Legal Services
Personnel Management Officer and inquired about a Judge Advocate General
(JAG) Individual Mobilization Asset (IMA) position in Third Army;

      17 November 2003 - Applicant e-mailed the HRC-St. Louis Legal
Services Personnel Management Officer informing him that he was interested
in serving on boards; and this e-mail was forwarded to the Board Membership
Officer for consideration;

      5 December 2003 - Applicant e-mailed the HRC-St. Louis Legal Services
Personnel Management Officer informing him of an application submitted by
the applicant for a Temporary Tour of AD (TTAD) that listed the HRC-St.
Louis Legal Services Personnel Management Officer as the contact;

      13 January 2004 - Applicant e-mailed the HRC-St. Louis Legal Services
Personnel Management Officer and informed him that the applicant was not
interested in the Third Army position because it was just a stop to Iraq.
The applicant also informed him he had declined a position in Indiana
because he had civilian interviews coming up and that he had inquired about
a position in Tyler, Texas; and

      8 March 2004 - Applicant e-mailed the HRC-St. Louis Legal Services
Personnel Management Officer notifying him that he had a GS-14 job offer in
Washington but still continued to interview all over the country.

5.  The USAR Command Surgeon also indicated that during the period for
which incapacitation pay was requested, on 10 March 2004, the applicant had
signed a DA Form 7349 applying for an active duty/active duty training
(AD/ADT) tour.  In the application, he had responded "No" to all questions
related to on-going medical problems, and mentioned only dental care,
physical therapy for a knee injury, and medication for cholesterol.  In
effect, he self-reported that he had no medical limitations to performing
an AD/ADT tour.  At this time, the applicant was being followed by VA
health care providers.  On 4 June 2004, the applicant again signed a DA
Form 7349, requesting an ADT tour to attend a military legal course. In
this application, he again answered "NO" to all questions related to on-
going medical problems and medical treatment.  As a result, he was again in
effect, self-reporting that he had no medical limitations to performing an
AD/ADT tour.  Finally, this official indicated that the Medical Operating
Data System (MODS) showed the applicant's two most recent physical
examinations were 25 April 2004 and 22 February 2000, and both reported a
"1", no limitations, in the applicant's psychiatric profile.

6.  In the self-authored statement the applicant submitted to the Board, he
claimed that the USAR Command Surgeon's denial of his incapacitation pay
request was based on the fabrication of a medical examination dated in
April 2004; ignoring diagnosis and treatment at Scott Air Force Base;
ignoring diagnosis and treatment at Walter Reed Army Hospital (WRAH) where
he was recalled to active duty and put on medical hold; taking facts out of
context from VA records; taking selective statements out of his Fort
Benning records and ignoring anything that referred to trauma or PTSD;
ignoring the findings of the Chief, Physician at Scott Air Force Base, WRAH
and the VA concerning his inability to work; ignoring a written Line of
Duty (LOD) issued in February 2004, and representing that it did not exist;
and failing to make or request any inquiry of his treating physicians
concerning his ability to be employed.

7.  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.
The regulation in effect prior to 14 November 1986, provided entitlement to
full pay and allowances without regard to the loss of civilian employment
income, if it was determined the Soldier was unable to perform “normal
military duties.”

8.  Public Law 99-661, 14 November 1986, changed the method the Army used
for determining entitlement to incapacitation pay.  Under this law,
entitlement to incapacitation pay was governed strictly by a Reservist
demonstrating a loss of civilian income.  If a Reservist lost civilian
income as a result of an injury or disease incurred while performing
official military duties, the Reservist would be reimbursed up to, but not
to exceed, the active duty pay and allowances he or she would receive for
their military pay grade and years of service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the USAR Command Surgeon's denial of
his request for incapacitation pay for the period August 2003 through July
2004 was unjust, and the supporting evidence he submitted were carefully
considered.  However, there is insufficient evidence to support his claim.


2.  By law and regulation, the purpose of incapacitation pay is to
compensate Reservists for the loss of civilian income experienced as a
result of an injury or disease incurred while performing military duties.
If a Reservist experiences a loss of civilian income as a result of an
injury or disease incurred while performing official military duties, the
Reservist is reimbursed up to, but not to exceed, the active duty pay and
allowances authorized for their military pay grade and years of service.

3.  Although it is clear the applicant was diagnosed with a PTSD while
serving on active duty in Kuwait, which was determined to be "In Line of
Duty", and that he continued to be treated for this condition at Fort
Benning, WRAH and by the
VA during the period in question, the medical evidence provided by the
applicant is not sufficiently compelling to conclude that he was unable to
be employed during the period.

4.  The medical treatment records provided, while alluding to problems
related to employment, do not state with certainty that the applicant was
unable to work during this period, and there is no medical evidence that
would support a conclusion that he was medically disqualified from further
military service based on his condition.

5.  Notwithstanding the applicant's explanations to the contrary, there is
significant evidence that suggests he was seeking both civilian and
military employment during the period, and that he in fact had an offer of
civilian employment that he declined during the period.  The applicant has
failed to provide convincing and compelling evidence confirming he was
unable to obtain and perform civilian employment during the period in
question.  Further, there is no military medical evidence indicating that
his PTSD condition was physically disqualifying for further military
service.

6.  Although, the USAR Command Surgeon did refer to 2004 physical
examination that did not exist, the applicant has failed to provide a
compelling argument that would support a reversal of the denial of
incapacitation pay in his case, which was primarily based on the medical
evidence that his condition did not prevent his civilian employment, and
that he was actively seeking employment during the period.  Based on the
evidence provided, there is an insufficient evidentiary basis to conclude
that he experienced a loss of civilian income solely as a result of an
injury or disease he incurred while performing military duties.

7.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JTS  __  __MJNT_  __TMR __  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.




                                  _____John N. Slone    ____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070003841                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/12/                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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