IN THE CASE OF:	  

	BOARD DATE:	  8 May 2008

	DOCKET NUMBER:  AR20080000174 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1. Application for correction of military records (with supporting documents provided, if any).

2. Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that he be paid incapacitation pay for the period        25 November 2003 through 31 May 2004.

2.  The applicant states that he was entitled to incapacitation pay due to an accident which he incurred during his annual training during fiscal year 2002.  He did not receive any pay during that time from his civilian job due to his injury.

3.  The applicant provides a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 19 March 2002; one page of a letter from his doctor, dated 4 October 2002; a letter, dated 9 November 2004, from the National Guard Bureau (NGB); a letter from his doctor, dated 24 November 2004; a memorandum, dated 2 February 2005, from the Puerto Rico National Guard Element, Joint Forces Headquarters, Deputy Chief of Staff for Personnel; a memorandum, dated 3 March 2006, from the Commonwealth of Puerto Rico, National Guard Joint Forces Headquarters; seven DA Forms 7574 (Incapacitation Pay Monthly Claim Form) for the period 25 November 2003 through 31 May 2004; seven DA Forms 7574-1 (Military Physician’s Statement of Soldier’s Incapacitation/Fitness for Duty) for the period 1 November 2003 through 31 May 2004; one DA Form 7574-2 (Soldier’s Acknowledgement of Incapacitation Pay Counseling), dated 23 May 2006; and one page of a medical document, titled “ELBOWS, WRISTS, and FOREARMS.”


CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Army National Guard on 28 January 1982.

2.  A DA Form 2173, dated 19 March 2002, shows the applicant was treated for a swelling forearm on 17 March 2002, during annual training.  The unit commander determined that the applicant’s injury was incurred in the line of duty and no formal line of duty investigation was required.  

3.  In a 9 November 2004 memorandum, NGB noted that on 4 February 2003 it agreed with the Puerto Rico Army National Guard’s line of duty finding of NOT IN LINE OF DUTY-NOT DUE TO OWN MISCONDUCT-Existed Prior to Service (EPTS) with No Aggravation.  The applicant appealed the finding, and the memorandum noted that the line of duty determination would be forwarded to the U. S. Army Human Resources Command, who was the final approving authority on his Line of Duty appeal.

4.  A 2 February 2005 memorandum from the Puerto Rico National Guard Element, Joint Forces Headquarters, Deputy Chief of Staff for Personnel, stated in part, “The enclosed Line of Duty determination of (the applicant/applicant’s social security number) was AMMENDMENT (sic)-APPROVED/IN THE LINE OF DUTY – EPTS – SERVICE AGGRAVATION….”

5.  On 23 May 2006, the applicant submitted seven DA Forms 7574 wherein he and his civilian employer certified that he was unable to work at his civilian job for the period 25 November 2003 through 31 May 2004.  The forms also indicated that he was receiving Department of Veterans Affairs (DVA) Disability Compensation.

6.  In the processing of this case, an advisory opinion was obtained from the Personnel Division, NGB.  That office recommended approval of the applicant’s request.  That office also noted that the applicant indicated on his DA Forms 7574 that he received DVA disability compensation during the period of time for which he requests incapacitation pay.  That office stated that Army Regulation 135-381, paragraph 1-13(k) states that Reserve Component Soldiers are not entitled to receive both DVA disability compensation and incapacitation pay for the same disabling condition.  If his DVA disability compensation was paid for the same period and disabling condition before he was authorized incapacitation pay, it will be deducted from his incapacitation payment.



7.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  On 3 April 2008, he concurred with the advisory opinion.

8.  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 Soldiers.

9.  Army Regulation 135-381 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.  Prerequisites for entitlement to incapacitation pay are inability to perform normal military duties or satisfactory demonstration of loss of nonmilitary earned income.  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. 

10.  Army Regulation 135-381 states that Reserve Component Soldiers are not entitled to receive both DVA disability compensation and incapacitation pay for the same disabling condition.  If the approving authority permits incapacitation pay for the same period and disabling condition, the Soldier must waive the DVA disability compensation to receive military pay and allowances.  The DVA will reduce or stop the disability payment while the member receives incapacitation pay.  If the DVA disability compensation was paid for the same period and disabling condition before the Soldier was authorized incapacitation pay, it will be deducted from the Soldier’s incapacitation payment.

11.  Department of Defense Instruction (DODI) 1241.2 (Reserve Component Incapacitation System Management), paragraph 4.3. states it is Department of Defense policy to authorize pay and allowances, to the extent permitted by law, for Reserve Component members who are not medically qualified to perform military duties, as determined by the Secretary concerned, because of an injury, illness, or disease incurred or aggravated in the line of duty or to provide pay and allowances to Reserve Component members who are fit to perform military duties but experience a loss of earned income because of an injury, illness, or disease incurred or aggravated in the line of duty.





DISCUSSION AND CONCLUSIONS:

1.  The applicant’s DA Form 2173 indicated his commander determined that the applicant’s injury was incurred in the line of duty.  In the 2 November 2004 NGB memorandum, NGB noted that on 4 February 2003 NGB agreed with the Puerto Rico Army National Guard’s line of duty finding of NOT IN LINE OF DUTY-NOT DUE TO OWN MISCONDUCT-EPTS with No Aggravation.  

2.  However, the Puerto Rico National Guard Element, Joint Forces Headquarters, Deputy Chief of Staff for Personnel memorandum, dated              2 February 2005, indicated that the Line of Duty determination was amended     to read “APPROVED/IN THE LINE OF DUTY – EPTS – SERVICE AGGRAVATION….”  Therefore, the applicant would have been eligible for incapacitation pay.  He provided DA Forms 7574 wherein his civilian employer verified that he lost civilian income due to his injury during the period for which he requests incapacitation pay.

3.  The applicant’s records should be corrected to show he was approved to receive incapacitation pay as a result of lost civilian income for the period          25 November 2003 through 31 May 2004.  Any DVA disability compensation he was paid for this period, for the same disabling condition, will be deducted from his incapacitation payment.

BOARD VOTE:

__xxx___  __xxx ___  __xxx ___  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 all Department of the Army records of the individual concerned be corrected by showing he was approved to receive incapacitation pay as a result of lost civilian income for the period 25 November 2003 through 31 May 2004 and that he be paid all incapacitation pay due as a result of this correction, minus any DVA disability compensation he was paid for this period, for the same disabling condition.




      ________XXX___________
       	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)                                         AR20080000174



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ABCMR Record of Proceedings (cont)                                         AR20080000174


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