RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  30 October 2007
	DOCKET NUMBER:  AR20070011561 


	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

Mrs. Nancy L. Amos

Analyst


The following members, a quorum, were present:


Ms. Carmen Duncan

Chairperson

Mr. Chester A. Damian

Member

Mr. Ronald D. Gant

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 that his records be corrected to show he was approved for incapacitation pay for the period 1 May 2004 to 30 September 2004.

2.  The applicant states, in effect, that he was incapacitated for a year until he went back to work on 6 October 2004.

3.  The applicant provides two fax coversheets, one from the applicant and one to the applicant, both dated 10 August 2007; a memorandum, dated 1 April 2004; a memorandum, dated 1 June 2004; a letter, dated 4 June 2004, from the applicant; a letter, dated 5 June 2004, from the applicant; two memoranda, both dated 15 June 2004; a letter, dated 31 July 2004, from the applicant; a letter, dated 19 August 2004, with a DA Form 3349 (Physical Profile); an email, dated 16 September 2004; a memorandum, dated 5 October 2004; a memorandum, dated 14 October 2004; an Employment/School Document from the Department of Veterans Affairs (DVA), dated 30 September 2004; a memorandum, dated      9 September 2005; a memorandum, dated 27 June 2006; a letter, dated 13 July 2006, with a Medical Examination Report for Commercial Driver Fitness Determination, Certification of Road Test, and two letters apparently from his civilian employer; an email, dated 1 September 2006; and a memorandum, dated 1 September 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Army National Guard on an unknown date.

2.  In a memorandum dated 1 April 2004, the applicant’s unit requested the applicant be paid incapacitation pay beyond six months.  The memorandum noted the applicant reaggravated a left knee injury while on active duty (from      3 February to 21 September 2003) in September 2003.  The memorandum noted the line of duty finding had been approved on 9 October 2003 and the applicant had been paid incapacitation pay from 22 September 2003 through February 2004.  Additional incapacitation pay was requested for the period 22 March 2004 through 30 September 2004.

3.  A 1 June 2004 memorandum from Texas Military Forces, Joint Forces Headquarters, Adjutant Generals Department, to the applicant’s unit indicated there may have been a problem with the applicant’s line of duty investigation.

4.  In a memorandum dated 15 June 2004, the Deputy State Surgeon noted that the applicant was scheduled for a fit for duty evaluation.  It also noted that he had incurred a line of duty re-aggravation injury to his right knee.

5.  A 5 October 2004 memorandum from the applicant’s unit indicated that he had been released from Active Duty/Incapacitation status as of 5 August 2004 and that he had been returned to a drilling status.  

6.  The applicant’s civilian occupation was a full-time professional truck driver.  On 6 October 2004, he completed a medical examination for a commercial driver fitness determination and was certified as being fit to perform such duties.  He returned to his civilian employment shortly thereafter.  

7.  In a memorandum dated 14 October 2004, Texas Military Forces, Joint Forces Headquarters, Adjutant Generals Department, provided a formal line of duty investigation on the applicant to his unit.  The finding was “APPROVED:  IN LINE OF DUTY-EPTS-SERVICE AGGRAVATION.”

8.  In a memorandum dated 9 September 2005, the applicant’s unit requested the applicant be paid incapacitation pay beyond six months and restated the facts noted in its 1 April 2004 memorandum on the same matter.

9.  On 27 June 2006, Texas Military Forces, Joint Forces Headquarters, Adjutant Generals Department, forwarded the request for extended incapacitation pay on the applicant to the National Guard Bureau.  The 27 June 2006 forwarding memorandum requested incapacitation pay for the period 1 May 2004 through     30 September 2004.

10.  On 1 September 2006, the National Guard Bureau indicated it could not act on the request for extended incapacitation pay for the applicant because of the age of the period of payment requested.

11.  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.

12.  Army Regulation 135-381, paragraph 3-2 states 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.  Paragraph 3-2 

states a finding that the injury, illness, or disease was incurred or aggravated in the line of duty is mandatory to qualify for benefits.  Paragraph 3-5 states RC Soldiers who are disabled from injury, illness, or disease while on active duty orders for more than 30 consecutive days are eligible for the same disability benefits as their Active Army counterparts.  

13.  Army Regulation 135-381, paragraph 4-1e 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.  Inactive duty (IDT) pay is considered to be military income.

14.  Army Regulation 135-381, paragraph 4-1g states 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 nonmilitary income. 

15.  Department of Defense Instruction (DODI) 1241.1 (Reserve Component Incapacitation System Management) states members authorized incapacitation pay will not be allowed to attend IDT or to acquire retirement points for drills.  

16.  DODI 1241.2 states incapacitation pay in any particular case may not be made for more than 6 months without review of the case by the Secretary concerned to ensure that continuation of military pay and allowances is warranted under this Instruction and to determine whether the member should be referred to the Disability Evaluation System.  Such review shall be made every   6 months.

DISCUSSION AND CONCLUSIONS:

1.  It appears the applicant met the eligibility criteria for an extension of his incapacitation pay due to his inability to work in his civilian occupation as a professional truck driver.

2.  The applicant aggravated a knee injury in September 2003 while on active duty.  The line of duty finding had been approved on 9 October 2003, and he was paid incapacitation pay from 22 September 2003 through February 2004.  

3.  Additional incapacitation pay for the applicant was requested.  One request mentions the period 22 March 2004 through 30 September 2004.  Another request mentions the period 1 May 2004 through 30 September 2004.

4.  The applicant’s unit indicated that the applicant had been released from Active Duty/Incapacitation status as of 5 August 2004 and that he had been returned to a drilling status.  This indicates that in March and April 2004 he was not in a drilling status.  He was not cleared for return to his civilian occupation as a full-time professional truck driver until 6 October 2004. 

5.  It would be equitable to correct the applicant’s records to show the request     to extend the applicant’s incapacitation pay from 1 March 2004 through             30 September 2004 was approved.

6.  The applicant was cleared to attend drill in August 2004.  Members authorized incapacitation pay are not allowed to attend IDT or to acquire retirement points for drills.  The applicant’s records should be reviewed and, if necessary, action taken to recoup any IDT pay paid to him during the period 1 March 2004 through 30 September 2004 and to void any IDT retirement points awarded to him during the period 1 March 2004 through 30 September 2004.

BOARD VOTE:

__cd____  __cad___  __rdg___  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 all Department of the Army records of the individual concerned be corrected by: 

     a.  showing the request to extend his incapacitation pay from 1 March 2004 through 30 September 2004 was approved and processed in a timely manner; 

     b.  paying to him all due incapacitation pay as a result of the above correction; and 


     c. reviewing his finance and unit records and, if necessary, taking action to recoup any inactive duty pay paid to him during the period 1 March 2004 through 30 September 2004 and to void any inactive duty retirement points awarded to him during the period 1 March 2004 through 30 September 2004.




____Carmen Duncan_____
          CHAIRPERSON




INDEX

CASE ID
AR20070011561
SUFFIX

RECON

DATE BOARDED
20071030
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
128.14
2.

3.

4.

5.

6.