IN THE CASE OF:	  

		BOARD DATE:	        3 September 2008

		DOCKET NUMBER:  AR20080010619 


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 correction of the narrative reason for separation on his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 24 October 1991, to show he was medically discharged with entitlement to severance pay and incapacitation pay. 

2.  The applicant states that he suffered injuries during his service in Saudi Arabia and that his injuries were determined to be “In Line of Duty.”  He was subsequently assigned to a medical holding detachment at Fort McClellan, Alabama, on 10 September 1991 from which he was honorably discharged on 24 October 1991.  He also adds that “the non-characterization of [his] medical reason unfairly denies [him] of the entitlement to incap[actation] pay and severance pay.”   

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

	a.  U.S. Army Chemical and Military Police Centers and Fort McClellan, Alabama, memorandum, dated 18 March 1992, titled “Line of Duty Determination.”

   b.  DA Form 2173 (Statement of Medical Examination and Duty Status), dated 29 February 1992 with endorsement.
   
   c.  U.S. Army Chemical and Military Police Centers and Fort McClellan, Alabama, memorandum, dated 31 July 1989, titled “Delegation of Authority.”
	d.  U.S. Army Medical Department Activity (MEDDAC), Outprocessing Record, dated 11 September 1991.

	e.  U.S. Army MEDDAC, Fort McClellan, Alabama, Memorandum for Record, dated 27 November 1991, titled “Medical Release,” with a listing of names of personnel being released.

   f.  644th Ordnance Company (Ammunition) (General Support), Alabama Army National Guard (ALARNG), Bessemer, Alabama, Memorandum for Record, dated 27 November 1991, titled “Release from Active Duty.” 

   g.  U.S. Army MEDDAC, Fort McClellan, Alabama, Orders 97-1, dated 10 September 1991, Release from Attachment.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant’s records show he was born on 21 July 1946 and was inducted into the Army of the United States on 9 December 1964.  He completed basic combat and advanced individual training, and was awarded military occupational specialty (MOS) 61D (Amphibian Operator).  He was honorably separated and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) on 8 December 1967.  The highest rank/grade he attained during this period of military service was specialist four (SP4)/E-4 (Temporary).

3.  The applicant’s records also show he enlisted in the USAR for a period of 4 years on 9 December 1967 and was honorably discharged on 8 December 1971.

4.  After a break in service, the applicant enlisted in the ALARNG for a period of
1 year on 6 November 1972.  He was assigned to the 1st Battalion, 167th Infantry, Camp Shelby, Alabama, in MOS 11B (Infantryman) and was transferred to the 644th Ordnance Company, Bessemer, Alabama, as a 55B (Ammunition Storage Specialist).  His records also show he executed a series of extensions and/or reenlistments in the ALARNG and was promoted to sergeant (SGT)/E-5 on 1 July 1976 and to staff sergeant (SSG)/E-6 on 21 August 1978. 

5.  On 3 December 1990, the Office of the Adjutant General, ALARNG, issued the applicant his Notification of Eligibility for Retired Pay at Age 60, also known as the 20-Year Letter.

6.  On 6 December 1990, the applicant was ordered to active duty in support of Operations Desert Shield/Storm and subsequently served in Saudi Arabia from 10 January 1991 to 16 August 1991.  

7.   On 8 July 1991, the applicant complained of persistent pain resulting from ingestion of chemical pills on 20 May 1991.  He was treated at a military hospital in Saudi Arabia.  His disease/injury was later determined to be in “Line of Duty.”

8.  On 9 September 1991, by memorandum the Chief, Patient Administration Division, Fort McClellan, Alabama, notified the U.S. Army Transition Point, that it was determined by the medical staff at Noble Army Community Hospital, Fort McClellan, Alabama, that the applicant was medically fit for release from active duty.  This memorandum further directed the applicant’s release from medical hold to the control of his ARNG unit, the 644th Ordnance Battalion, effective 20 September 1991.

9.  On 10 September 1991, the U.S. Army MEDDAC, Fort McClellan, Alabama, published Orders 97-1, releasing the applicant from assignment to the Medical Holding Detachment, USA MEDDAC, Fort McClellan, Alabama, to the 644th Ordnance Battalion, effective 20 September 1991.

10.  On 24 October 1991, the applicant was released from active duty for completion of his required period of service, as directed by the Service Secretary. The DD Form 214 he was issued at the time of his separation shows he was honorably released from active duty to the control of his ARNG unit.  This form further shows he completed 10 months and 19 days of creditable active military service.

11.  On 19 January 1993, the Office of the Adjutant general, ALARNG, published Orders 019-031, honorably discharging the applicant from the ARNG and reassigning him to the USAR Control group (Retired), effective 7 December 1992.


12.  The applicant turned 60 on 21 July 2006.

13.  Army Regulation 135-178 prescribes the policies for the separation of enlisted Soldiers from the Reserve Components.  Chapter 15 of this regulation provides for separation when it has been determined that an enlisted Soldier is no longer qualified for retention by reason of medical unfitness.

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the PDES.  

15.  Chapter 4 of the same regulation contains guidance on processing through the PDES, which includes the convening of a medical evaluation board (MEBD) to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  If the MEBD determines a Soldier does not meet retention standards, the case will be referred to a physical evaluation board (PEB).  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  It also investigates the nature, cause, degree of severity, and probable permanency of the disability of soldiers whose cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

16.  Public Law 99-661, 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.


17.  Public Law 100-456, FY 1989, which amended Public Law 99-661, states, in pertinent part, that a member of a Reserve component of a unformed 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 disabled 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; and 

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

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

18.  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 the 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.  

19.  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.  

20.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge narrative reasoning should be changed to show he was medically discharged with entitlement to severance pay and incapacitation pay was carefully considered.  However, there is insufficient evidence to show he should have been medically discharged by reason of physical disability. 

2.  The evidence of record confirms the applicant became ill during his service in Saudi Arabia, while on active duty, as a result of ingestion of chemical pills.  He was subsequently treated and upon his return to the United States, was attached to a medical unit for the purpose of further treatment and evaluation.  He was found fit for duty and was accordingly released from active duty to the control of his ARNG unit.  

3.  There is no evidence in the applicant's records that he was determined unable to perform “normal military duties.”  Furthermore, there is no evidence in the applicant’s records and the applicant did not provide sufficient evidence that medical illness would have warranted his referral to the PDES.  Therefore, he was not considered by an MEBD.  Without an MEBD, there would have been no basis for referring him to a PEB.  Without a PEB, the applicant could not have been issued a medical discharge or retirement for physical disability, or entitlement to severance pay.

4.  With respect to the applicant’s contention regarding incapacitation pay, by regulation, this pay is paid only during the period a member remains unfit for military duty or demonstrates a loss of earned income as a result of the incapacitation.  The evidence of record shows that the applicant was found fit for duty.  Furthermore, there is no evidence that demonstrates the applicant’s loss of earned income as a result of his claimed incapacitation.  Therefore, the applicant did not qualify for payment of incapacitation pay.

5. In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.


															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)                                         AR20080010619



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ABCMR Record of Proceedings (cont)                                         AR20080010619



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