RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        21 February 2008
      DOCKET NUMBER:  AR20070006665


      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:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Ms. Sherri V. Ward                |     |Member               |
|     |Mr. Jeffrey C. Redmann            |     |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.

2.  The applicant states, in effect, that the 81st Regional Support Command
(RSC), Birmingham, Alabama, after promising to send her incapacitation pay
claim to Fort McCoy, Wisconsin, for processing, denied her claim.  She also
states that she was illegally discharged without undergoing a medical board
and is owed incapacitation pay.

3.  The applicant provides three self-authored statements and associated
documents in support of her claim.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that she served on active duty in the
Regular Army for 2 years and 11 months between 17 June 1983 and 16 May
1996, and that she entered the United States Army Reserve (USAR) in 1999.

2.  On 21 September 2004, a Medical Evaluation Board (MEB) convened at
Fort Gordon, Georgia, to consider the applicant's case.  The MEB
recommended the applicant's case be referred to a Physical Evaluation Board
for a determination of fitness for duty based on her failure to meet
medical retention standards based on the diagnosed conditions of
"Fibromyalgia syndrome manifested by body aches and pain"; and "Syncope of
undertermined etiology." The applicant did not concur with the MEB findings
and recommendations and appealed them.  The MEB appellate authority
reviewed the MEB findings and reaffirmed them, and the applicant's case was
referred to a PEB.

3.  On 18 November 2004, a PEB convened at Fort Sam Houston, Texas, to
consider the applicant's case.  The PEB determined the applicant was unfit
for duty based on her diagnosed conditions of "Fibomyalgia Syndrome with
Depression" and "Syncope."  Based on its review of the collective medical
evidence of record, the PEB found that the applicant's medical and physical
impairment prevented reasonable performance of duties required by grade and
military specialty.  The PEB also found there was compelling evidence to
support a finding that the current condition existed prior to service
(EPTS) and was not aggravated beyond normal progression by such service.
The PEB finally recommended that the applicant be separated from the
service without disability benefits.

4.  On 3 December 2004, the applicant non-concurred with the findings and
recommendations of the PEB and demanded a formal hearing with personal
appearance.

5.  The applicant was scheduled to appear before a formal PEB hearing on
2 February 2005, and failed to appear without an explanation.  She was
rescheduled for a 2 March 2005 formal hearing, and on 1 March 2005, the PEB
received notification from her civilian physician that she was ill and
would not attend the formal hearing on 2 March 2005, and she was again
rescheduled for 30 March 2005.  On 25 March 2005, the applicant requested a
delay due to incoming current medical information pertinent to her case.
This request was denied by the PEB President on 29 March 2005, and the
applicant again failed to appear at the formal hearing.

6.  On 13 April 2005, the United States Army Physical Disability Agency
(USAPDA) completed its review of the applicant's case, and upheld the
decision of the PEB.  The USAPDA found the recommendations of the PEB were
just and in conformance with the provisions of law and regulation, and the
applicant was honorably discharged, without severance pay, from the USAR on
that date.

7.  On 12 September 2005, the Headquarters, 81st Regional Readiness
Command, Command Surgeon, disapproved the applicant’s request for
incapacitation pay based on a thorough review of the documentation
submitted by the applicant and on the recommendation of the commander of
the 3274th United States Army Hospital, which was supported by a legal
review by the 81st RRC Staff Judge Advocate.  The Command Surgeon stated
that the hospital commander's recommendation to deny incapacitation pay was
based on the finding of the PEB that the applicant's unfitting medical
condition had existed prior to her military service and had not been
aggravated beyond normal progression by such service.  The command surgeon
further indicated that he was a neurosurgeon and had reviewed the Line of
Duty (LOD) determination made on the applicant, which he determined was
based on symptoms and not medical diagnosis.  He finally concluded that
although an LOD may be adjudicated in the LOD, this does not carry with an
automatic entitlement to incapacitation pay.

8.  Army Regulation 135-381 (Incapacitation of Reserve Component Soldiers)
prescribes policies and implements statutory authorities regarding
incapacitation pay and allowance and reviews 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.”
9.  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.

10.  Paragraph 1-5 of Army Regulation 135-381 states that the objective of
the RC Incapacitation System is to compensate, to the extent permitted by
law, members of the RC who are unable to perform military duties and/or who
demonstrate a loss in civilian earned income as a result of an injury,
illness, or disease incurred or aggravated in the line of duty and to
provide the required medical and dental care associated with the
incapacitation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that she was illegally discharged and
unjustly denied incapacitation pay after being promised she would receive
it were carefully considered.  However, there is insufficient evidence to
support these claims.

2.  The evidence of record confirms a PEB, after reviewing all the medical
evidence of record and independent evidence provided by the applicant,
determined that she was unfit for further service based on a medical
condition that existed prior to her entering military service, and that
this unfitting condition had not been aggravated beyond normal progression
by such service.

3.  The evidence further shows that the applicant's case was properly
reviewed by the USAPDA, which found the findings and recommendations of the
PEB were just and in conformance with the provisions of law and regulation.
 As a result, it is concluded her medical separation processing was
accomplished in accordance with the applicable law and regulation.  All
requirements of law and regulation were met and the rights of the applicant
were fully protected throughout her medical separation processing.
Therefore, there is an insufficient evidentiary basis to support the
applicant's claim that her discharge was illegal.

4.  By regulation, RC Incapacitation System is authorized to compensate, to
the extent permitted by law, members of the Reserve Components who are
unable to perform military duties and/or who demonstrate a loss in civilian
earned income as a result of an injury, illness, or disease incurred or
aggravated in the line of duty and to provide the required medical and
dental care associated with the incapacitation.
5.  In this case, the PEB determined the applicant's condition existed
prior to her military service, and was not aggravated beyond normal
progression by such service.  As a result, the denial of the applicant's
request for incapacitation pay by the 81st RRC Command Surgeon was proper
and equitable, and it would not be appropriate to grant her incapacitation
pay based on this preexisting condition at this time.

6.  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

__MKP   _  __SVW  _  __JCR __  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                 |AR20070006665                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2008/02/DD                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |2005/05/13                              |
|DISCHARGE AUTHORITY     |AR 635-40                               |
|DISCHARGE REASON        |EPTS Disability                         |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |128.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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