RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  01 May 2008
	DOCKET NUMBER:  AR20070005550 


	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.  




Director



Analyst

      The following members, a quorum, were present:


M

Chairperson

M

Member

M

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 recalled to the Alabama Army National Guard for the purpose of referral to a Physical Evaluation Board (PEB) for further processing.  He also requests, in effect, that he be paid incapacitation pay for the period 18 May 2005 through 12 July 2006, the date of his discharge.  

2.  The applicant essentially states that although he did not receive a DD Form 214 (Certificate of Release or Discharge from Active Duty), he was informed that he was transferred to the Retired Reserve on 26 July 1996 [the actual date was 13 July 2006.]  He also states that his medical records are self-explanatory, and that the medical documents which his counsel is submitting with his application correctly lists his principal medical concerns, namely, his chronic elbow pain, chronic pain from a hernia repair, diabetes, chronic low back pain, obstructive sleep apnea, gout, clinical depression, anxiety, and severe Attention Deficit Hyperactivity Disorder (ADHD).  He believes that if these medical problems had been properly presented to the informal PEB, his rating would have been higher than the 10 percent disability rating which he was awarded by the informal PEB.  He continued by essentially stating that he desired to appear before his informal PEB, but his assigned attorney informed him that he should not appear before the informal PEB because she thought he would lose his preliminary 10 percent rating.  As a result, although he wanted to, he did not appear before the informal PEB, and his assigned attorney did not present any medical evidence in his behalf.  

3.  The applicant also stated that on 17 January 2005, it was determined that he was not fit to perform military duties, and that his total incapacitation period was from 23 February 2003 to "indefinite."  However, he states that he only received 864 days of incapacitation pay from the Alabama Army National Guard, and that his incapacitation pay ended on 17 May 2005.  He further essentially believes that his incapacitation pay should have continued through the date of his discharge on 12 July 2006.

4.  The applicant provides an affidavit and evidence which has been indexed as enclosures to his counsel's memorandum in support of application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant be granted the relief he is requesting.

2.  Counsel essentially states that the applicant's case appears to be yet another case wherein a member of the United States Army National Guard was not well-served, and denied due process before PEB proceedings.  As a result, the record is unjust for the following reasons:

	a.  the applicant was given faulty advice when his PEB attorney advised him not to be present before the informal PEB, and that she declined to present any evidence; and

	b.  the Alabama Army National Guard failed to pay the applicant incapacitation pay for the entire period for which he was entitled said pay.

3.  Counsel also states that the record and his memorandum will show that, on a number of occasions while serving on active duty for training, the applicant was injured.  As a result of those injuries, counsel states that the applicant became severely debilitated, and that subsequent PEB proceedings awarded him a disability rating of 10 percent.  Counsel further essentially states that the documents will show that the applicant, acting upon his PEB attorney's advice, did not personally appear before the informal PEB.

4.  Additionally, counsel states that in the months and years leading up to the applicant's PEB proceedings, he was paid incapacitation pay by the Alabama Army National Guard, but from the documents, it would appear that he was due additional incapacitation pay for periods which he was not paid.  Counsel also recognizes that the Army Board for Correction of Military Records (ABCMR) opinions are only advisory in regard to National Guard applications, but has every confidence that the Alabama Army National Guard will honor the ABCMR's opinions and recommendations.

5.  Further, counsel states that pages 3, 5, and 16 of Enclosure 6 to his memorandum reflect the applicant's confused state of mind as his PEB approached, and that his confusion is completely supported by the synopsis of medical records contained in Enclosure 3 of his memorandum, the Medical Board Summary contained at page 21 of Enclosure 6, and the Memorandum for Record contained at page 12 of Enclosure 6.  Counsel suggests that the applicant's confusion, anxiety, and disorientation throughout the PEB process significantly contributed to his susceptibility to overly defer to his PEB attorney's "advice" that he not attend the informal PEB proceedings.    Counsel also essentially states that medications prescribed to the applicant, which included but was not limited to, percocet, lortab, ambient, oxycodone, and alprazolam, significantly factored into the applicant's confusion, some of which may have caused confusion in the applicant.  
6.  Regarding the applicant's request for incapacitation pay from 18 May 2005 through his discharge, counsel asks the Board to first consider Enclosure 7 to his memorandum, which is a Definitive Medical Statement, dated 17 May 2005.  In that document, counsel states that it was the opinion of the reviewing physician that the applicant was incapacitated and "not fit to perform military duties from [23 February 2003] to indefinite."  

7.  Counsel provides evidence which has been indexed as enclosures to his memorandum in support of application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he enlisted in the Alabama Army National Guard on 5 October 1979.  

2.  The applicant provided seven DA Forms 2173 (Statement of Medical Examination and Duty Status), which essentially show during his military career he:

	a.  allegedly sustained a finger injury on 12 August 1985 while on active duty for training (ADT) at Fort Pickett, Virginia when his third finger on his left hand became caught between reels of cable under the tail gate of a two and a half ton truck.  This particular DA Form 2173 does not indicate whether or not this injury was officially considered to have been incurred in the line of duty;

	b.  sustained a laceration on his left arm on 18 April 1991 while on inactive duty training (IDT) at Sheffield, Alabama when he lost his balance while cleaning windows in preparation for an enlisted conference when he accidentally lost his balance and fell against the window, which broke when the applicant placed his hand against it to brace himself.  This DA Form 2173 indicates that this injury was considered to have been incurred in the line of duty;

	c.  twisted his right knee on 27 February 1996 while on ADT in Panama while walking toward the showers, which appears to have been considered to have been incurred in the line of duty;

	d.  sprained his left ankle on or about 4 July 1998 while on ADT at Redstone Arsenal, Alabama when, while walking along the sidewalk in front of his orderly room, he stepped to the edge of the sidewalk and turned his left ankle.  This DA Form 2173 indicates that this injury was considered to have been incurred in the line of duty;

	e.  hit his elbow on the bar of a bus door on 9 February 2002 while on ADT at Redstone Arsenal, Alabama when, as he was getting into the vehicle, he pulled the bus door closed and hit his elbow on the bar on the door.  Although this particular DA Form 2173 does not indicate whether or not this injury was officially considered to have been incurred in the line of duty, page 44 of enclosure 6 shows that it was considered to have been incurred in the line of duty, as does a DA Form 2173, dated 23 February 2002; and

	f.  strained his left groin lifting weights while doing physical therapy on 
29 July 2003 while on IDT at Florence, Alabama.  This DA Form 2173 indicates that this injury was considered to have been incurred in the line of duty.

3.  On 17 January 2005, a private physician completed a statement [pages 9 through 11 of enclosure 6] related to the applicant's incapacitation pay, and found that the applicant was not fit to perform military duties on 23 February 2003, and remained unfit to perform military duties indefinitely.  This physician diagnosed the applicant with gout, hypertension, dyslipidemia, history of low back surgery and subsequent low back pain, and hernia repair in 2003 and 2004.

4.  In a memorandum, dated 16 September 2005 [page 38 of enclosure 6], the applicant's commanding officer informed higher headquarters that the applicant had been informed that a Medical Evaluation Board (MEB) would evaluate his ability to perform his duties as assigned in primary military occupational specialty (MOS) 31W (Telecommunications Operations Chief).  

5.  On 21 September 2005, the applicant was issued a permanent physical profile [page 31 of enclosure 6] for an ulnar contusion to his right elbow, left inguinal hernia, chronic low back pain, sleep apnea, osteoarthritis in his elbow and lumbar spine, and non-insulin dependent diabetes mellitus (NIDDM).  

6.  On 1 February 2006, the applicant was seen at the Eisenhower Army Medical Center Psychiatry Clinic at Fort Gordon, Georgia [enclosure 3].  The applicant was diagnosed with an adjustment disorder with mixed emotional features, but this condition was not psychiatrically disqualifying from further duty and was not ratable, and it was determined that the applicant met the psychiatric retention standards outlined in Army Regulation 40-501 (Standards of Medical Fitness).  The psychiatrist who interviewed the applicant also indicated that in his opinion, the applicant's personal appearance before a PEB and/or disclosure of information to him would not be deleterious [harmful] to his physical or mental health.  He also considered the applicant capable of maintaining his own affairs, and was competent for pay purposes.  He also determined that the applicant had the capacity to understand and participate in PEB proceedings.  It should be noted that the psychiatrist indicated that he reviewed the applicant's medical records, which essentially indicates that he was aware of the medications that the applicant was taking.

7.  On 17 April 2006, a MEB was conducted [pages 15 through 23 of enclosure 6], and the applicant did present views in his own behalf.  The MEB essentially referred the applicant to a PEB, and found that the applicant had three medical conditions that were incurred while entitled to base pay that were medically unacceptable, those being an ulnar contusion, left inguinal hernia repair (twice), and osteoarthritis in his right elbow and lumbar spine.  Although the MEB found that the applicant's chronic low back pain, obstructive sleep apnea, and noninsulin dependent diabetes mellitus were medically unacceptable, it was determined that these conditions were not incurred while the applicant was entitled to base pay.  Additionally, the applicant's adjustment disorder, hypertension, hyperlipidemia, and gout were determined to be both medically acceptable, and also not incurred while the applicant was entitled to base pay.  The MEB proceedings show that the applicant did not desire to continue on active duty under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  They also show that the applicant's continuance on active duty under the provisions of Army Regulation 635-40 was medically contraindicated.  The MEB's findings and recommendations were approved on 26 April 2006.  On 4 May 2006, the applicant did not agree with the MEB's findings and recommendations, and submitted a written appeal.  As a result, a memorandum, dated 8 May 2006, the applicant's MEB Narrative Summary was changed to reflect some of the items that he appealed.  It should be noted that in a memorandum [page 3 of enclosure 6], dated 9 May 2006, the applicant's PEB Liaison Officer (PEBLO) informed the president of the PEB that the applicant felt it was easier for the PEBLO to mail the MEB report to him versus the applicant coming in to sign it.  The PEBLO indicated that the MEB report was mailed to the applicant on 1 May 2006, and that as the applicant said that no one had ever discussed the Texas PEB checklist with him, a copy of that was mailed to him as well.  However, the PEBLO reported that the checklist was sent back unsigned [the applicant actually wrote " I (do not) understand this," and dated the document 4 May 2006].  The PEBLO also indicated that she had discussed it with the applicant, the applicant said that he "could not understand anything dealing with money without the help of counsel," which he apparently had been unable to obtain because he said legal would not return his phone calls.  The PEBLO also indicated that the applicant did not sign the DA Form 3947 (Medical Evaluation Board Proceedings) [pages 15 and 16 of enclosure 6] because the applicant said he had ADHD and did not understand the document, which the PEBLO questioned.   

8.  On 15 June 2006, a PEB [enclosure 4] found the applicant physically unfit, and recommended a combined disability rating of 10 percent for chronic elbow pain, status post ulnar contusion and epicondylectomy [excision of a rounded projection at the end of a bone, located on or above a condyle and usually serving as a place of attachment for ligaments and tendons].  He was also rated at zero percent for chronic ilioinguinal pain, left, status post inguinal hernia repair [twice], which was rated as mild.  This PEB also determined that the applicant's non-insulin dependent diabetes mellitus, chronic low back pain, and obstructive sleep apnea were each not separately unfitting.  

9.  On 28 June 2006, the applicant, on his DA Form 199 (Physical Evaluation Board [PEB] Proceedings) [enclosure 4], did not concur with the informal PEB proceedings, but waived a formal hearing.  He also elected not to submit a written appeal, and acknowledged that he understood that failure to submit a written appeal may result in final processing of his case without review by Headquarters, United States Army Physical Disability Agency.  

10.  Also on 28 June 2006, the applicant's counselor acknowledged that she informed the applicant of the findings and recommendations of the PEB, and explained to him the result of the findings and recommendation, his legal rights thereto, and certified that the applicant made the elections mentioned in the previous paragraph.

11.  On 12 July 2006, the applicant was honorably discharged from the Army National Guard, and was placed on the Retired Reserve on 13 July 2006.  As he had more than 20 qualifying years for Reserve retirement, the applicant had the option of accepting disability severance pay and forfeiting his Reserve retirement pay, or requesting transfer to inactive Reserve status and receiving Reserve retired pay at age 60.

12.  In a memorandum [page 8 of enclosure 6], dated 10 November 2005, the applicant's first sergeant confirmed that the applicant was paid incapacitation pay from 9 to 30 February 2002, and from 23 February 2003 to 17 May 2005.  

13.  During the processing of this case, an advisory opinion was obtained from the Personnel Division of the National Guard Bureau.  That office essentially recommended disapproval of the applicant's request.  That office opined that in accordance with Army Regulation 635-40, a Soldier has 10 days from the time they receive an informal PEB determination to either concur or nonconcur.  That office also stated that although the applicant nonconcurred within the required 
10 days, he elected not to submit a rebuttal and waived his rights for a formal PEB hearing and, as a result, found it unclear why the applicant now believes an injustice was done.  That office also stated that since the applicant elected not to submit a rebuttal and waived his rights to a formal PEB hearing, the regulation does not authorize him to appeal the PEB decision after the 10-day time limit expired.  That office also opined that in regards to incapacitation pay from 18 May 2005 to his retirement date, additional documentation was provided by the Alabama Army National Guard, which included a congressional inquiry response by the Alabama Army National Guard, dated 28 August 2005.  This response stated that on 2 August 2005, the State Surgeon determined that the applicant was able to perform the duties of a sergeant first class in his military occupational specialty.  The State Surgeon also stated that the applicant cannot be paid any further incapacitation pay based on the fact that his present conditions, including gout, hypertension, dyslipedmia, a history of low back pain with surgery, chronic low back pain, tenosynovitis, osteoarthritis in the lumbar spine, ankle and knee, as well as multi-level intervertebral disc degeneration, were not related to his line of duty conditions.

14.  A copy of the advisory opinion was forwarded to the applicant for comment and/or rebuttal.  In a letter, dated 30 November 2007, the applicant's counsel essentially stated that he is unclear why it is that the National Guard Bureau opines that the applicant "waived his rights for a formal PEB hearing," and that their opinion appears to be based on paragraph 4-20e(2) of Army Regulation 635-40.  Counsel also stated that in that superficial analysis, the National Guard Bureau simply stated that upon a nonconcurrence "with the findings without submitting a rebuttal, the PEB will approve the proceedings for the Secretary of the Army (SA) and forward the case to [the United States Army Human Resources Command (USA HRC)] for final disposition."  Counsel further states, as is omitted, there is nothing within the applicable Army regulation which mandates or suggests that the Secretary of the Army should or must concur in the proceedings.  Counsel also submitted a second affidavit from the applicant which addresses other ambiguities and omissions within the advisory opinion.

15.  In an affidavit, the applicant essentially stated that on 17 May 2005, he went to Eisenhower Army Medical Center at Fort Gordon, Georgia, and was seen by a physician's assistant (PA), who did not have his complete records.  He also stated that although the PA eventually saw him, the PA immediately said that he could not examine him without his complete records.  He further essentially stated that the PA did not have the results of his magnetic resonance imaging (MRI) tests.  He also stated, in pertinent part, that the "disposition" as written by the PA is misleading, and that the PA attempted to put his own statement for disposition, but the computer would not permit him to do so.  He also stated that when the disposition reflected "released [with] work/duty limitations," the PA stated that this was the only option left for him by the computer.   
16.  The applicant also stated, in pertinent part, that when he returned to his unit, he was told by his first sergeant that his incapacitation pay was terminated because of the 17 May 2005 medical record, which he stated was erroneous, and that based upon his command's position, he filed a congressional inquiry.  As a result of that complaint, he received another appointment at Eisenhower Army Medical Center, and was seen by a different physician.  At that time, the applicant had his medical records with him, and this physician did override the system and manually entered the information under "disposition" as "patient is not fit for duty and should undergo Medical Evaluation Board (MEB) process."  In this meeting, the physician told him that each of his ailments separately would not be enough for disability, but that each of them when taken together make him unfit for duty.

17.  The applicant continued by stating that regarding the State Surgeon's determination that he was able to perform the duties of a sergeant first class in MOS 31R, if the State Surgeon did make this determination, that determination was a paper review, and that he has no memory of ever meeting nor discussing his case with the State Surgeon.  

18.  Paragraph 4-20e(2) of Army Regulation 635-40 provides what action the PEB will take when the PEBLO is in receipt of a Soldier's completed DA Form 199 in which the Soldier nonconcurs with the findings of an informal PEB without submitting a rebuttal.  It provides that if a Soldier nonconcurs with the findings without submitting a rebuttal, the PEB will approve the proceedings for the SA and forward the case to USA HRC for final disposition.

19.  Paragraph 3-11 of this same regulation provides that a Soldier or his or her representative will not be permitted to appear before the informal PEB.

20.  Paragraph 3-8 of this same regulation provides that the appointed PEBLO at the medical treatment facility (MTF) is responsible for counseling Soldiers (or the next of kin or legal guardian in appropriate cases) concerning their rights and privileges at each step in disability evaluation, beginning with the decision of the treating physician to refer the Soldier to a MEB and until final disposition is accomplished.  For this purpose, the MTF commander will name an experienced, qualified officer, noncommissioned officer (NCO), or civilian employee as the PEBLO.  PEBLOs will counsel Soldiers, and this counseling will cover, as a minimum, legal rights (including the sequence of and the nature of disability processing), the effects and recommendations of MEB and PEB findings, estimated disability retired or severance pay (after receipt of PEB findings and recommendations), probable grade upon retirement, potential veteran's benefits, recourse to and preparation of rebuttals to PEB findings and recommendations, Disabled Veterans Outreach Program, post-retirement insurance programs, and the Survivor Benefit Plan.  This paragraph also emphasizes that counseling by the appointed legal counsel is only provided when the Soldier requests a formal hearing. 

21.  Paragraph 4-17 of this same regulation provides regulatory guidance for counsel during PEBs.  It provides that an Army attorney will be appointed as counsel to represent Soldiers at formal (emphasis added) PEB hearings.  The attorney will not be a voting member of the PEB or an advisor to the PEB, but will represent the Soldier as required when the Soldier requests a formal hearing. The attorney will counsel the Soldier until formal disability proceedings are completed.  The appointed counsel may also advise PEBLOs of MTFs that refer cases to the PEB.

22.  Army Regulation 135-381 (Incapacitation of Reserve Component Soldiers Processing Procedures) 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.  

23.  Army Regulation 135-381 also 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 Soldiers. 

24.  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.   

25.  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. 

26.  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.  

27.  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.

28.  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.

29.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.






DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be recalled to the Alabama Army National Guard for the purpose of referral to a PEB for further processing.  He also contends that he should be paid incapacitation pay for the period 18 May 2005 through 12 July 2006, the date of his discharge.  

2.  The contention that the applicant was provided faulty advice by counsel at the time to not be present before the informal PEB was considered, but rejected. By regulation, the applicant was not entitled to regularly appointed counsel unless he demanded a formal hearing, which he did not.  Additionally, the applicable regulation specifically states that neither the Soldier nor his/her representative are permitted to appear before the informal PEB.  Notwithstanding the outcome of the informal PEB, the applicant, after having been advised of his legal rights, nonconcurred with the informal PEB and elected not to submit a written appeal.  He did so after having been advised that he had the right to nonconcur and demand a formal hearing, with or without personal appearance before the formal hearing.  He also had the right to have counsel of his choice at no expense to the government in the event he demanded a formal hearing, but he also chose not to do so.  

3.  In turn, the applicant's counsel's contention that the applicant's confusion, anxiety, and disorientation throughout the PEB process significantly contributed to the applicant's susceptibility to overly defer to his PEB attorney's "advice" that he not attend the PEB proceedings was also rejected based upon the fact that he was not allowed to attend the informal PEB proceedings by regulation, and the fact that he was not technically entitled to counsel unless he demanded a formal hearing, which he did not.  

4.  The applicant's counsel's contention that the medication being taken by the applicant significantly factored into the applicant's confusion was carefully considered, but not found to have merit.  The medications referenced by counsel (percocet, lortab, ambient, oxycodone, and alprazolam) were prescribed to the applicant between April 2003 and October 2004, well before he was evaluated by the psychiatrist on 1 February 2006.  Assuming the applicant was still taking some or all of the above medications on this date, the psychiatrist, a competent medical authority, still determined in his professional opinion and after reviewing the applicant's medical records, that the applicant was capable of maintaining his own affairs, and determined that the applicant had the capacity to understand and participate in PEB proceedings.   

5.  The fact that the applicant had indicated that he did not understand the MEB results and the Texas PEB checklist was also noted; however, as the applicant formally appealed the MEB findings and recommendations, and submitted a cogent written appeal, it is clear that the applicant fully understood and participated in the proceedings.

6.  Counsel's contention that there is nothing within the applicable Army regulation which mandates or suggests that the SA should or must concur in the proceedings when a Soldier nonconcurs with informal PEB proceedings without submitting a rebuttal was noted.  However, the applicable Army regulation does in fact clearly state that the proper process in this instance is that the PEB will (emphasis added) approve the proceedings for the SA.  As a result, the PEB followed the applicable Army regulation to the letter, with no deviation or ambiguity, when it approved the applicant's informal PEB after the applicant nonconcurred with the informal PEB, but waived a formal hearing.

7.  Many of the ailments the applicant contends should have been considered by the PEB were not related to his line of duty conditions and, as a result, were appropriately not considered by the PEB. 

8.  Regarding the applicant's request for incapacitation pay for the period 18 May 2005 through 12 July 2006, it is clear that the applicant had medical conditions during this period which likely prevented him from performing his civilian occupation.  However, a PA on 17 May 2005, and subsequently a physician on 12 July 2005, determined that the applicant had recovered from his medical conditions for which he had approved line of duty investigations.  As a result, his entitlement to incapacitation pay was correctly stopped effective 17 May 2005, and contrary to the applicant's contentions, he in fact is not eligible for incapacitation pay for the period 17 May 2005 through 12 July 2006 for medical conditions that were not incurred in the line of duty.

9.  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.

10.  In view of the foregoing, there is no basis for granting relief to the applicant in this case.




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.




      ___        XXX                ___
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20070005550



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET, 2ND FLOOR
ARLINGTON, VA  22202-4508