IN THE CASE OF:	  

		BOARD DATE:	  	  7 October 2008

		DOCKET NUMBER:  AR20080011860 


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 reconsideration of his request for extension to receive incapacitation pay beyond the 6-month statutory limit.

2.  The applicant states, in effect, he is providing new evidence and/or argument dealing with his case and requests reconsideration and approval of his application for an extension to receive incapacitation pay.

3.  The applicant provides a copy of Headquarters, Military Department of Arkansas, 296th Medical Company (GA), Hot Springs, Arkansas, memorandum, dated 8 December 2006, subject:  Request to Exceed 180-Day Statutory Limit on Receipt of Incapacitation Pay.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070017012, on 17 June 2008.

2.  The applicant enlisted in the Army National Guard on 9 December 1994, completed training, and was awarded the military occupational specialty (MOS) 91W (Health Care Specialist).  On 10 February 2003, he was ordered to active duty in support of Operation Enduring Freedom for a period not to exceed
365 days.  

3.  The available service medical records document the applicant’s treatment for back and left leg pain or a herniated disc in his back beginning in April 2003.  The applicant deployed to Kuwait on 27 August 2003.  Following his deployment, the condition worsened and he was returned to the United States on 3 October 2003 for additional treatment.

4.  The applicant was issued a DA Form 3349 (Physical Profile) on 12 November 2003.  His medical condition was listed as back and left leg pain in need of back surgery.  His limitations were listed as no physical fitness training, no strenuous activity, no lifting, no pushing, no bending, and no twisting.  A favorable line of duty determination was completed and approved on 10 February 2004.

5.  The applicant’s military service records contain a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he entered active duty this period on 10 February 2003, was honorably released from active duty on
25 March 2004, and transferred to the 296th Medical Company, Charleston, Arkansas.  At the time, he was credited with completing 1 year, 1 month, and
16 days net active service this period.  This document also shows that he served in Kuwait and Iraq from 27 August 2003 to 3 October 2003.  

6.  The applicant’s military service records contain a copy of Headquarters, Military Department of Arkansas, Office of the Adjutant General, Camp Joseph T. Robinson, North Little Rock, Arkansas, Orders 029-843, dated 29 January 2007.  These orders show that the applicant was honorably discharged from the Army National Guard and as a reserve of the Army, effective 8 December 2006

7.  The applicant’s available military service records are absent any evidence 
pertaining to the applicant's request for continuation of incapacitation pay subsequent to his separation from active duty.  His military service records are also absent any evidence related to the applicant's subsequent evaluations.

8.  In support of his request for reconsideration, the applicant provides a copy of Headquarters, Military Department of Arkansas, 296th Medical Company (GA), Hot Springs, Arkansas, memorandum, dated 8 December 2006, subject:  Request to Exceed 180-Day Statutory Limit on Receipt of Incapacitation Pay.  This document, in pertinent part, provides information related to the applicant and the incident upon which incapacitation pay was authorized and also requests a
6-month extension of incapacitation pay for the period 1 October 2004 through 31 March 2005.  This document also shows that it was signed by the captain serving as Commander, 296th Medical Company (GA), Hot Springs, Arkansas on 8 December 2006.

9.  Army Regulation 135-381 (Incapacitation of Reserve Component Soldiers) provides the standards of eligibility for medical care, continuation of pay (incapacitation pay), and physical disability separation for reservists and guardsmen.  In pertinent part it states:

	a.  Incapacitation is defined as a physical disability due to injury, illness, or disease that prevents the performance of military duties as determined by the secretary concerned, or which prevents the member from returning to the civilian occupation in which the member was engaged at the time of the injury, illness, or disease. 

	b.  To be eligible for incapacitation pay reservists and guardsmen must be unable to perform normal military duty or show a loss of nonmilitary income.  The individual must be disabled “while so employed,” and the disabling condition must have been incurred or aggravated while in a duty or travel status.

	c.  When a Soldier has incurred or aggravated an injury, illness, or disease during active duty (AD) or inactive duty training (IDT) that renders the Soldier unable to perform military duties and/or demonstrates a loss in nonmilitary earned income, he/she is responsible for initiating an incapacitation pay claim.

	d.  Incapacitation pay shall be paid only during the period a member remains not fit for military duty and/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 6 months without approval by the Secretary of the Army or his designee.  The Secretary of the Army delegates to the Chief, National Guard Bureau, the authority to continue the payment of benefits paid under Title 37, United States Code, sections 204(g) and 204(h), for more than 6 months to incapacitated members of the Army National Guard/Army National Guard of the United States.

	e.  In a case in which the Soldier is projected to remain incapacitated for more than 6 months, a determination will be made whether or not it is in the interest of fairness and equity to continue benefits paid and/or if the case should be referred to the Disability Evaluation System (DES).  A review will be made every 6 months. 

10.  Army Regulation 135-381, paragraph 2-3 (Criteria), in pertinent part, provides that incapacitation pay and allowances after release from AD or IDT may be authorized for Reserve Component Soldiers for a period of up to
6 months.  The Secretary of the Army or an authorized representative may extend the 6-month period in the interest of fairness and equity.

11.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his request for extension to receive incapacitation pay beyond the 6-month statutory limit should be reconsidered based upon new evidence he submits in the form of Headquarters, Military Department of Arkansas, 296th Medical Company (GA), Hot Springs, Arkansas, memorandum, dated 8 December 2006, subject:  Request to Exceed 180-Day Statutory Limit on Receipt of Incapacitation Pay.

2.  The evidence of record shows the applicant was separated from active duty on 25 March 2004.  The evidence of record also shows the applicant received incapacitation pay for the 6-month period following his release from active duty (i.e., from 1 April 2004 through 30 September 2004).

3.  In review of the original request in this case, the evidence of record shows  the applicant initially submitted evidence that showed his company commander requested an extension of the applicant’s incapacitation pay on 4 December 2004.  In addition, he submitted evidence that shows he was notified on 2 March 2007 the National Guard Bureau could only approve extension of incapacitation pay for the current fiscal year and that he would have to apply to the ABCMR for extension of incapacitation pay.  The ABCMR determined that the applicant failed to provide sufficient evidence to show that he applied for a continuation of incapacitation pay beyond the initial 6-month period in a proper and timely manner, or that his request for continuation of incapacitation pay beyond the normal 6-month period was denied.

4.  In his request for reconsideration of his case, the applicant now provides evidence that shows his company commander requested an extension of the applicant’s incapacitation pay on 8 December 2006 (emphasis added).  It is noted that this is the same date that the applicant was discharged from the Army National Guard and as a reserve of the Army and more than 1 year and 9 months after the applicant’s release from active duty on 24 March 2004.  Thus, once again, the applicant fails to provide sufficient documentation to show that he applied for a continuation of incapacitation pay beyond initial 6-month period in a proper and timely manner, or that his request for continuation of incapacitation pay beyond the normal 6-month period was denied.
5.  In view of the foregoing, the applicant fails to provide sufficient evidence to show that he submitted a timely request, along with the proper documentation, to extend the initial 6-month period of incapacitation pay.  In addition, there is no evidence of record that the Secretary of the Army or an authorized representative extended the 6-month period in the interest of fairness and equity.  Therefore, there is insufficient evidence upon which to base correction of his records in this case.

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  Therefore, there is no justification for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ____X____  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 to amend the decision of the ABCMR set forth in Docket Number AR20070017012, dated 17 June 2008.




      _______ _   _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)                                         AR20080011860



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ABCMR Record of Proceedings (cont)                                         AR20080011860



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