IN THE CASE OF:	  

	BOARD DATE:	  

	DOCKET NUMBER:  AR20070007061 


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his records be corrected to change his duty status from “present, fully fit” to “unit for duty” for the period 31 January 2006 to 30 June 2006 and that he be given incapacitation (INCAP) pay for the same period.   

2.  The applicant states, in effect, that on 7 March 2005, while mobilized in support of Operation Iraqi Freedom he suffered a traumatic fall injuring his rib cage and that he also obtained a cervical fracture.  Since returning from Iraq he has been undergoing treatment for back pain and depression.  The applicant states upon return to his unit in January 2006, he notified his command about his traumatic fall suffered in March 2005 in Iraq and submitted the medical documents regarding his condition.  He was told by his unit personnel to go to the Veterans Hospital and on the same day he suffered an emotional breakdown and went to the Veterans Hospital for assistance.  When he reported back to his unit in February 2006, he was told he was being scheduled for a medical appointment with the Fort Buchanan Medical Clinic for a medical evaluation.  In March 2006, he asked about the appointment and he was not provided any information.  He was unable to perform his military duties in any capacity during the months of January through May 2006.  Finally, on 11 June 2006 he was examined by the Fit for Duty Determination Board (FFDDB) and found to be unfit for duty and unable to perform his military duties and responsibilities due to his back injury and emotional condition relating back to his Iraq service.  He was reevaluated on 11 December 2006 and again found unfit for duty.  He finally states, in effect, he is requesting INCAP pay for the period that he was found unfit for duty from 31 January 2006 through 30 June 2006. 

3.  The applicant provides two self authored statements; a copy of his DD Form 
214 (Certificate of Release From Active Duty); a copy of a memorandum, dated 
10 May 2006, subject:  Request for a FFDDB; a copy of DA Form 7349 (Initial Medical Review – Annual Medical Certificate); a copy of the FFDDB acknowledge statement, dated 11 June 2006; two copies of DA Form 2173 (Statement of Medical Examination and Duty Status); a copy of the memorandum from the Commonwealth of Puerto Rico, Puerto Rico National Guard, Joint Task Force Headquarters, Subject:  Transmittal of Line of Duty Determination (LOD); 
two copies of DA Form 2173 (Statement of Medical Examination and Duty Status), dated 15 February 2007; and 294 pages of his radiology and progress reports from the Veterans Affairs Medical Center (VAMC), San Juan, Puerto Rico.

4.  The documents the applicant submitted provides the following information:

	a.  the applicant’s Radiology Report dated 29 April 2006, shows he underwent a complete spine series which revealed that he had L5-S1 discogenic disease and minimal spondylosis of the spine. 

	b.  the 292 pages of his progress notes from the San Juan VAMC during the period from 30 January 2006 to 23 October 2006 show he was treated for nightmares, impaired self-esteem, impaired coping/leisure skills, anger management, anxiety, and depression since his return from the Persian Gulf.  

	c.  the memorandum from the Commonwealth of Puerto Rico, Puerto Rico National Guard, Company C, 130th Engineer Battalion, Carolina, Puerto Rico, dated 10 May 2006, requests that the applicant be scheduled for a FFDDB 
resulting from injuries he received during a traumatic fall while deployed in 
support of Operation Iraqi Freedom.

	d.  the DA Form 7349, dated 11 June 2006, shows in Item 8 (Explain Any Positive Answers Given Above) the applicant was admitted to a day hospital program because of an adjustment disorder, major depression, and post traumatic stress disorder (PTSD); and that he had a fall in Iraq, and felt that he would harm others.  Item 19 (Army National Guard, refer to MDRB) in Part III of the DA Form 7349 states that the applicant was found to be “UNFIT.”  
Item 20 (Complete “PULHES” using the Physical Profile Function Guide in Table 7-1, Army Regulation 40-501) shows the applicant’s profile was P-1, U-1, L-1, H-1, E-1, S-3 and Item 24 (Miscellaneous Recommendations) states that the applicant was diagnosed with major depression and he was referred to a MEB (Medical Evaluation Board).

	e.  the applicant’s FFDDB Acknowledgement Statement, dated 11 June 2006, was used to classify individuals according to their functional abilities and to notify Soldiers of further action after the FFDDB.  The duty related options of the FFDDB statement show the applicant was referred to the MEB and a LOD investigation was required prior to the convening of the MEB.  The FFDDB statement reiterated that the applicant would perform administrative duties until his MEB.
	f.  the applicant’s DA Form 2173, dated 11 December 2006 shows in Item 15 (Details of Accident or History of Disease) that the applicant’s chief complaint was that on 7 July 2005 he developed lower back pain.  Item 31 (Details of Accident –Remarks) states that in July 2005, while mobilized in Iraq, the applicant was injured when, while taking a shower, he heard a mortar blast, and while he was running for shelter, he fell on the right side of his rib cage with force and then slid to the ground.  The applicant could not move because of the pain and he dragged himself up, got dressed and went to the TMC (Troop Medical Clinic).  Item 31 continues that no doctor was available so the applicant was given Motrin and told to return the next day where it was determined that besides his rib injury he had a slight cervical fracture.  Item 32 was marked “yes” that the injury was considered to have incurred in the line of duty.

	g.  the applicant submitted a DA Form 2173, dated 20 December 2006, that shows in Item 15 (Details of Accident or History of Disease) that the Soldier was evaluated in June and July of 2006 and received the diagnosis of major depressive disorder with psychotic features and that he had been treated at the VA hospital for the same illness.  Item 31 (Details of Accident –Remarks) states that the Soldier has suffered from depression, panic attacks, was jumpy, scared, had nightmares, and other mental health disorders since his mobilization of 2004 through 2005.  It also states that the applicant had been treated at the VA hospital and was currently taking medication.  Item 32 was marked “yes” that the injury is considered to have been incurred in the line of duty.

	h.  the applicant’s memorandum from the Commonwealth of Puerto Rico, Puerto Rico National Guard, Joint Forces Headquarters, The Adjutant General’s Office, San Juan, Puerto Rico, Subject:  Transmittal of Line of Duty Determination, dated 15 February 2007, states that the applicant’s LOD determination was approved/in the line of duty.

CONSIDERATION OF EVIDENCE:

1.  On 31 March 1993, the applicant enlisted in the ARNG for a period of 8 years. He completed his initial training and was awarded military occupational specialty 62B (Light Wheel Vehicle Mechanic).  The highest grade he held was sergeant (SGT/E-5).

2.  The applicant's record shows that he was ordered to active duty in support of Operation Enduring Freedom and entered active duty on 24 August 2004.  He served in Iraq from 28 August 2004 to 6 November 2005 and was released from active duty by reason of completion of required active duty service.  The separation document he was issued at the time shows he completed a total of 
1 year, 2 months, and 12 days of active duty service.  
3.  Two DA Forms 3349 from the Departments of the Army and the Air Force, National Guard Bureau, Arlington, Virginia, dated 11 June 2006 and 
11 December 2006 show the applicant received permanent profiles for both major depression and for his lower back injury.  Item 10 (Other) of the DD Form 3349, dated 11 June 2006, states that the applicant could perform administrative duties until his MEB convened.  

4.  Six DA Forms 7574 from the Departments of the Army and the Air Force, National Guard Bureau, Arlington, Virginia, show the applicant requested INCAP pay from 31 January 2006 through 30 June 2006.

5.  Six DA Forms 7574-1 from the Departments of the Army and the Air Force, National Guard Bureau, Arlington, Virginia, dated 9 April 2007 and completed at the Rodriguez Army Medical Health Clinic, Fort Buchanan, verify the applicant was incapacitated and therefore not fit to perform his military duties from 
31 January 2006 through 30 June 2006.

6.  In connection with the processing of this case, an advisory opinion was obtained from the Chief, Personnel Division, Departments of the Army and the Air Force, National Guard Bureau, Arlington, VA, dated 25 January 2008.  The opinion recommends the applicant’s request for incapacitation pay be approved based on his medical records.  The opinion enclosed DA Forms 3349s dated 
11 June 2006 and 11 December 2006, showing the applicant was on a physical profile during these periods and was unable to perform his military duties and responsibilities.  The Chief, Personnel Division also enclosed the DA Forms 7475 and DA Forms 7475-1 dated 31 January 2006 through 30 June 2006, that show the applicant was unfit for duty during those periods.  

7.  The advisory opinion also stated that Army Regulation 135-381, paragraph 
1-8 provides that a member who is unable to perform military duties because of incapacitation is entitled to full pay and allowances, including all incentive pay to which entitled, less any civilian earned income for the same period the member receives incapacitation pay.  Incapacitation pay is adjusted only by the amount of earned income received.  The civilian income of the member other than earned income received will not be a consideration in calculating incapacitation pay.  A member authorized incapacitation pay will not be allowed to attend Inactive Duty Training (IDT) or to acquire points for performing IDT.  A Soldier attending IDT and performing military duties may be evidence that they are not suffering from a disability that entitles them to incapacitation pay.  This will not be used as a basis for terminating entitlement to medical treatment.  



8.  The applicant concurred with the advisory opinion on 6 February 2008.

9.  Public Law 99-661, enacted on 14 November 1986, changed the method the Army used for determining entitlement to incapacitation pay.  Prior to the effective date of this statute, a Reservist was entitled to full pay and allowances, without regard to loss of civilian income, if that Reservist was determined unable to perform “normal military duties.”  After the passage of that statute, 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.  Public Law 100-456, enacted in FY 1989, amended Public Law 99-661 and provides, in pertinent part, that a member of a Reserve component of a uniformed service is entitled to incapacitation pay in the amount of the pay and allowances of a member of a regular component of a uniformed service member if the member is physically disable as the result of an injury, illness, or a disease incurred or aggravated:

	a.  in the line of duty while performing active duty.
	
	b.  in the line of duty while performing inactive active duty.

	c.  while traveling directly to or from such duty or training.

11.  Generally speaking, income earned from nonmilitary employment or self employment by an incapacitated member during a month the member would have otherwise been entitled to incapacitation pay operates to reduce the amount of incapacitation pay the member actually receives on a dollar-to-dollar basis.

12.  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.  

13.  Army Regulation 135-381 provides policies and procedures regarding medical benefits, hospitalization, disability entitlements, incapacitation pay, and death benefits for members of the USAR and the Army National Guard of the United States.  The regulation states, in effect, that incapacitation pay is authorized for a member injured or incurred or aggravated an illness or disease in line of duty.  A completed favorable LOD investigation is a prerequisite for receiving incapacitation pay.  

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.  The applicant was returned to administrative duties pending the outcome of his MEB processing.

16.  Orders Number D031-02, DA, United States Army Physical Disability Agency, Building 7, WRAMC, Washington, DC, dated 31 January 2008, show that the applicant was released from duty because of physical disability incurred as a result of an injury while entitled to receive basic pay and placed on the Temporary Disability Retired List effective 6 March 2008.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention, in effect, that he is entitled to INCAP pay for the period 31 January 2006 through 30 June 2006 as a result of injuries and subsequent medical problems that he experienced as result of his deployment to Iraq was carefully considered and found to have merit.

2.  The evidence of record shows that while the applicant was deployed in support of Operation Iraqi Freedom; he sustained injuries to his lower back on
7 July 2005.  The applicant also underwent treatment for depression, anxiety, and other adjustment disorders after returning from Iraq in January 2006.  

3.  Based on a review of the evidence by the NGB and LOD section it was determined the applicant’s records were corrected to show he was “unfit for duty” and that he was entitled to INCAP pay for the period from 31 January 2006 through 30 June 2006.  Therefore, it is concluded based on a matter of equity supported by the favorable opinion expressed by the NGB, Personnel Division, the applicant should be granted the requested relief.

4.  The evidence of record indicates the applicant did not fully recover from his injuries and as a result of those injuries and as a result of his psychiatric problems he was subsequently unable to perform his military duties from 
31 January 2006 through 30 June 2006.  The evidence of record also shows the applicant was released from active duty due to a permanent physical disability and he was placed on the Temporary Disability Retired List (TDRL) on 6 March 2008.  Therefore, it would serve the interest of equity to correct the applicant’s record to show he is entitled to the full amount of incapacitation pay requested for the months of 31 January 2006 through 30 June 2006.  

5.  In view of the foregoing, the applicant’s PRARNG and Department of the Army records should be corrected as recommended below.

BOARD VOTE:

____X__  ___X____  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that the state Army National Guard records and the Department of the Army records of the individual concerned be corrected by:

      a.  changing the applicant’s duty status from “present, fully fit for duty” to “unfit for duty” from 31 January 2006 through 30 June 2006. 
      
      b.  granting the applicant INCAP for the period 31 January 2006 through 
30 June 2006.
      
c.  reviewing the applicant’s finance and unit records, and taking action to recoup any inactive duty pay he may have received during the period 31 January 2006 through 30 June 2006 and voiding any inactive duty retirement points he may have been awarded during the same period.



      ___________X_________
                CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20070007061



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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