RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 December 2007
	DOCKET NUMBER:  AR20070007198 


	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. Mohammed R. Elhaj

Analyst


The following members, a quorum, were present:


Ms. Kathleen A. Newman

Chairperson

Ms. Rose M. Lys

Member

Mr. Edward E. Montgomery

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:

	a.  his Medical Retention Processing (MPR2) be approved.

	b.  payment of Incapacitation Pay (INCAP) for the period November 2005 through April 2006. 

2.  The applicant states that in April 2005, a Fit for Duty Determination Board (FFDDB) recommended his medical discharge from the Army.  He further adds that based on Army Regulation 40-501 (Standards of Medical Fitness) and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), the Army can't discharge him from the service because "they omitted procedures stated in those regulations."  He also adds that his MRP2 request was not approved and his INCAP pay was not approved by the National Guard Bureau.

3.  The applicant provided the following documentary evidence in support of his application:

	a.  DA Form 4187 (Personnel Action), dated 30 April 2003, Request for MRP2.

	b.  Memorandum, dated 18 April 2005, Request for MRP2 Status.

	c.  Memorandum, dated 19 April 2007, Extension of INCAP pay.

	d.  Memorandum, dated 20 June 2005, Human Resources Command disapproval of the applicant's MRP2 request.

	e.  Puerto Rico Army National Guard (PRARNG) Fit for Duty Determination Board (FFDDB), dated 10 April 2005. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is a first sergeant (1SG), who has been a member of the PRARNG since August 1973 and holds military occupational specialty (MOS) 11B (Infantryman).  In his civilian capacity, the applicant is a police officer. 

2.  On 18 January 2003, the applicant was ordered to active duty in support of Operation Enduring Freedom for a period of 365 days.  He was assigned to the 1st Battalion, 296th Infantry, in Iraq.  He was demobilized on 4 March 2004 and released from active duty on 2 April 2004. 

3.  On 15 June 2003, while conducting combat operations in Iraq, the applicant fell in an enemy foxhole and injured his knee, ankle and neck.  He was later diagnosed with low back injury.  An investigating officer determined that the applicant's injury was in the line of duty.  The DD Form 261 (Report of Investigation-Line of Duty and Misconduct Status) was finalized on 12 December 2005 and forwarded to Headquarters, PRARNG, on 3 January 2006.

4.  On 31 October 2003 while the applicant was conducting combat operations in Iraq, the applicant's vehicle was hit by an Improvised Explosive Device (IED) and the applicant sustained fragment injuries as a result of the explosion.  He was later diagnosed with muscle strain and tinnitus secondary to an explosion.  An investigating officer determined that the applicant's injury was in the line of duty.  The second DD Form 261 was also finalized on 12 December 2005 and forwarded to Headquarters, PRARNG, on 3 January 2006.

5.  The applicant's record shows that he was issued the following two DA Forms 3349 (Physical Profile):

	a.  On 15 April 2005, he was issued a permanent profile for low back pain, Post Traumatic Stress Disorder (PTSD), and Osteoarthritis.  His PULHES showed a "3" under the "L", a "2" under the "H", and a "3" under the "S." 

	b.  On 4 August 2005, he was issued a permanent profile for low back pain, depression, anxiety, and joint pain.  His PULHES showed a "3" under the "L", a "2" under the "H", and a "3" under the "S". 

6.  On 18 April 2005, the applicant submitted a request for MRP2 status (Reserve Component Soldiers mobilized in support of a contingency operation may apply for MRP2 within six months from their date of REFRAD). The applicant stated that he understood he would be assigned to the Medical Retention Processing Unit (MRPU) Installation closest to his home that could provide the appropriate level of medical treatment for his condition.  He further stated that he understood he would be required to perform duty at a unit near his home other than his unit of assignment.  However, his MRPU and place of duty were contingent on the medical treatment required and the availability of medical resources in the area. 

7.  On 20 June 2005, HRC-Alexandria returned the applicant's request for MRP2 stating that it was reviewed, but not favorably considered in accordance with the Forces Command (FORSCOM) Implementation for Community Based Health Care Initiative (CBHCI).  

8.  The applicant's Medical Evaluation Board (MEB) is not available for review in this case.  

9.  On 23 July 2007, and subsequent to submitting this application, a Physical Evaluation Board (PEB) convened at Fort Sam Houston, Texas, to evaluate the applicant.  The PEB found that the applicant was physically unfit and recommended placing him on the Temporary Disability Retired List (TDRL) with a combined rating of 50 percent and recommended reexamination in January 2009.  The PEB rated the applicant under the Veterans Administration Schedule for Rating Disabilities (VASRD) code 9411, PTSD, at 30 percent; code 5237, low back pain, at 20 percent; code 5237, neck pain, at 10 percent; and codes 5099 and 5003, left shoulder pain, at zero percent.

10.  On 6 August 2007, after being informed of the findings and recommendations of the PEB, and after having received a full explanation of the results of the findings and recommendations and the legal rights pertaining thereto, the applicant concurred and waived a formal hearing of his case.  

11.  The Department of the Army Warrior in Transition (WT) Consolidated Guidance provides a consolidated Army policy and procedure document for managing Warrior in Transition Unit (WTU) Soldiers.  A Warrior in Transition is a Medical Holdover, Active Duty Medical Extension, Medical Hold and any other Active Duty Soldier who requires a Medical Evaluation Board, or an Active Duty Soldier with complex medical needs requiring six months or more of treatment or rehabilitation.  Initial Entry Training (IET) Soldiers are only eligible if they require a Medical Evaluation Board or when deemed appropriate by the local MEDCOM Commander and the IET Soldier’s Commander.  A Soldier’s mission while assigned to a WTU is to heal.  Soldiers assigned to a WTU may have work assignments in the unit, but such work may not take precedence over the Soldier’s therapy and treatment.  

12.  Medical Retention Processing (MRP) is a program that applies only to Reserve Component Soldiers currently on active duty for contingency operations in support of the Global War on Terrorism (GWOT).  Medical Retention Processing 2 (MRP2) applies to Army National Guard (ARNGUS) and USAR Soldiers voluntarily transitioning onto active duty under Title 10 USC 12301(h) for MRP, to include participation in the CBHCI.  MRP2 is designed to authorize the temporary return to active duty status for MRP RC Soldiers previously mobilized in support of the GWOT.  Under MRP2, Soldiers may voluntarily return to active duty specifically for medical evaluation and treatment and if necessary processing through the PDES for an injury or illness incurred or aggravated during their previous period of mobilization in support of the GWOT.

13.  The MRP2 program is designed to evaluate and treat an illness, injury, or disease the MRP2 medical review board determines as the reason to return the Soldier back to active duty and it applies to RC Soldiers already released from active duty (REFRAD) from Title 10 USC 12302 partial mobilization orders.  The Soldier's unit has the sole responsibility to ensure that Soldiers are counseled on Incapacitation (INCAP) pay, MRP2 options and provisions prior to submitting request packets to HRC-Alexandria.  Before submitting this packet, the ARNG unit commander signing the DA 4187 requesting Soldier consideration for the MRP2 program must obtain consent from the State Governor or other appropriate authority of the State concerned through Joint Forces Headquarters, Health Systems Specialist Headquarters (HSS) allowing the Soldier to be ordered to active duty in a voluntary status.  The original packet is sent directly from the Soldier's unit to HRC-Alexandria with an informational copy sent through the State JFHQ-HSS to the National Guard Bureau.  HRC-Alexandria has the approval or disapproval authority as well as publishing the MRP2 assignment, attachment, and REFRAD Orders.  RC Soldiers mobilized in support of a contingency operation may apply for MRP2 within six months from their date of REFRAD.  

14.  Soldiers not eligible for the MRP2 program include Soldiers discharged or separated from the Army; Soldiers in the Active Guard and Reserve (AGR) program; Soldiers with a pre-existing medical condition not aggravated while on active duty; Soldiers whose line of Duty Determination is a "No", i.e. "Not in Line of Duty"; Soldiers in an approved Continuance on Active Duty Reserve (COAR) status; and pregnant Soldiers whose pregnancy does not interfere with the care, treatment or evaluation of her illness or injury.

15.  The applicant's records show that he submitted his monthly requests for Incapacitation pay (INCAP) with allied documents (military physician's statement of Soldier's incapacitation and Soldier's acknowledgement of incapacitation pay counseling) for the months of November and December 2005 as well as the months of January, February, and March 2006, on time through his company commander to the State Joint Forces Headquarters, PRARNG.  Records further show that the PRARNG did not forward the request for INCAP pay to the National Guard Bureau until January 2007. 


16.  In a memorandum, dated 19 April 2007, the National Guard Bureau informed the applicant that the NGB can only authorize payment for the current fiscal year (FY) and was unable to pay for a prior fiscal year.  The NGB also recommended the applicant apply through the Army Board for Correction of Military Records for INCAP pay for the period 1 November 2005 through 30 April 2006.

17.  On 21 February 2007, the applicant's immediate commander submitted a request to exceed the 180-day statutory limit of INCAP.  However, the request did not include all the supporting documentation.  Accordingly, the National Guard Bureau returned the request for INCAP without action. 

18.  In an advisory opinion dated 26 September 2007 and obtained in the processing of this case, the Chief, Personnel Division, National Guard Bureau, Arlington, Virginia, recommended approval of the applicant's INCAP pay for the period November 2005 through April 2006.  The PRARNG did not process the applicant's documents for Fiscal Year 2006 (FY06) until a year later.  The National Guard Bureau, Line of Duty (LOD) Section, returned the applicant's request for INCAP pay without action since the NGB can only pay for the current FY and recommended the applicant apply through the ABCMR.

19.  On the request for MRP2, the NGB cannot recommend approval or disapproval.  The ARNG, Chief, Surgeons Office, in an email dated 14 September 2007, stated that the applicant can reapply directly to Human Resources Command (HRC)-Alexandria, Virginia, at any time by compiling new evidence and to request a six-month post REFRAD time limit waiver in accordance with chapter four of the Warrior Transition (WT) Consolidated Guidance.  RC Soldiers mobilized in support of a contingency operation may apply for MRP2 within six months from their date of REFRAD.

20.  On 26 September 2007, the applicant was provided a copy of the National Guard Bureau advisory opinion in order to have an opportunity to respond to its contents.  He concurred with the advisory opinion on 1 October 2007.

21.  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.  Paragraphs 1-10 and 1-11 state that the commander will complete the DA Form 2173 (Statement of Medical Examination and Duty Status) within sufficient time to ensure pay and allowances will commence within 30 days of the date of the injury, illness, or disease was reported, unless there is a clear and convincing evidence that the injury, illness, or disease was not incurred or aggravated in a duty status.  Incapacitation pay will be paid only during the period the member remains unfit for military duty or demonstrates a loss of earned income as a result of the incapacitation.  Payment in any particular case may not be made for more than six months without review of the case by appropriate headquarters.  To ensure that continuation of incapacitation pay is warranted under this regulation, a review will be made every six months.  Incapacitation pay will continue as long as the conditions warranting the incapacitation pay exist and the approving authority determines that it is in the best interest of fairness and equity to continue the payment.  When incapacitation lasts over a year, the case will be processed through the Disability Evaluation System for disability or retirement.

22.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), governs the evaluation for physical fitness of Soldiers who may be unfit for their military duties because of physical disability.  This regulation applies to the Active Army, the Army National Guard and the U.S. Army Reserve.

23.  Paragraph 3-2b of Army Regulation 635-40 provides for retirement or separation from active service.  This provision of regulation states that disability compensation is not an entitlement acquired by reason of service incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  The regulation also states that, when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit.

24.  Paragraph 8-4 of Army Regulation 635-40 requires a commander to refer a Soldier to the responsible medical treatment facility when the unit commander believes the Soldier is unable to perform the duties of his or her office, grade, rank or rating because of physical disability.  This provision of regulation requires that the request will be in writing and will state the commander’s reasons for believing that the Soldier is unable to perform his or her duties.  This paragraph also requires that commanders of Reserve units not on active duty will be guided by Army Regulation 40-501 (Standards of Medical Fitness) and chapter 8 of Army Regulation 635-40.






DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his MPR2 should be approved and his incapacitation pay for the period November 2005 through April 2006 should be paid. 

2.  Evidence of record shows the applicant was a member of the Army National Guard who was recalled to active duty in support of the GWOT and that he was wounded in action.  Upon release from active duty, the applicant applied for the MRP2 program that was designed exactly for Soldiers like himself.  However, although the applicant met the eligibility for the MRP2 program, the approval authority returned his request without a favorable consideration and stated that he did not meet the qualifications, presumably because his request was not submitted within six months from the date he was relieved from active duty.  However, in view of the subsequent PEB that placed the applicant on the TDRL, there is no further action required.

3.  Evidence of record further shows that the applicant submitted all necessary paperwork in accordance with Army Regulation 135-381 for his INCAP pay for the period November 2005 through April 2006.  Through no fault of the applicant and due to an administrative oversight, the request for INCAP was not processed in a timely manner by the PRARNG.  Therefore, the applicant is entitled to payment of INCAP for the period 1 November 2005 through 30 April 2006. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__kan___  __rml___  __em____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by requesting the National Guard Bureau pay the applicant his Incapacitation Pay for the period 1 November 2005 through 30 April 2006.


2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends no further action on so much of the application that pertains to approval of the Medical Retention Processing 2 (MRP2). 




							Kathleen A. Newman
______________________
          CHAIRPERSON



INDEX

CASE ID
AR20070007198
SUFFIX

RECON

DATE BOARDED
200071206
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(GRANT)
REVIEW AUTHORITY

ISSUES         1.
128.0000
2.

3.

4.

5.

6.