IN THE CASE OF:	  

		BOARD DATE:	       31 March 2009

		DOCKET NUMBER:  AR20080020102 


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, in effect, that he be paid incapacitation pay for the period from 21 July to 18 August 2005.

2.  The applicant states, in effect, that he received two in line of duty (LOD)   determinations, one for carpal tunnel syndrome and another for gastritis.  He contends that both of his conditions started while he was assigned to Iraq in 2003.  He claims to have documentation for these injuries and he has submitted claims for incapacitation pay sixteen times.  The wrong forms were used and the original LOD for gastritis had to be resubmitted.  He is still receiving treatment for his stomach problems and receives an endoscope examination every 2 years.  He will be on medicine for the rest of his life.  He has been working on this problem since returning from Iraq.  

3.  The applicant provides, in support of his application, the following documents:

	a.  Chronological time line of events from 19 April 2004 through 30 May 2006;

	b.  active duty orders and a memorandum;

	c.  DD Form 214 (Report of Separation from Active Duty), ending on 20 April 1978, and a DD Form 214 (Certificate of Release or Discharge from Active Duty) ending on 15 May 2004;


	d.  DD Form 261 (Report of Investigation LOD and Misconduct Status) with enclosures, dated 18 May 2006, for carpal tunnel syndrome;

	e.  DD Form 261, dated 18 May 2006, with enclosures for gastritis;

   f.  Seven DA Forms 3349 (Physical Profile), dated between 18 February 2003 and 30 September 2008;
   
   g.  Two sets of orders, 88th Regional Readiness Command, dated 29 May 2007 and 16 September 2008, assigning the applicant to the Trainees, Transients, Holdees, and Student (TTHS) Account;
   
   h.  List of medications;
   
   i.  DD Form 2808 (Report of Medical Examination) dated 6 September 2006;
   
   j.  Two letters and an endoscopy report, dated 29 March 2005, 18 September 2006, and 5 October 2007, respectively;
   
   k.  U. S. Army Reserve Command (USARC) Form 46-2 (Military Physician's Statement of Soldier's Incapacitation/Fitness for Duty), dated 20 December 2004;
   
   l.  Medical Imaging Report, Miami Valley Hospital, dated 25 August 2004;
   
   m.  Electro Diagnostic Medicine Laboratory Report, dated 21 May 2004;
   
   n.  Wright-Patterson Medical Center surgical documentation, dated 21 July 2005, including an incomplete DA Form 7574 (Military Physician's Statement of Soldier's Incapacitation/Fitness for Duty);
   
   o.  Doctor's statements, Hand Center, dated in April, June, and September 2008;
   
   p.  DD Form 2173 (Statement of Medical Examination and Duty Status) dated 4 November 2007;
   
   q.  DD Form 689 (Individual Sick Slip), dated 18 June 2007;
   
   r.  DD Form 2173 dated 28 June 2006;
   
   s.  DD Form 2173 dated 20 June 2006;
   
   t.  Radiologic Examination Reports, dated 8 November 2004 and 20 June 2005;
   
   u.  Documentation showing twenty-nine doctor visits between May 1991 and
10 December 2004;  
   
   v.  DA Form 7574-1 (Military Physician's Statement of Soldier's Incapacitation/Fitness for Duty), dated 28 February 2006; and
   
   w.  DA Form 7574 (Incapacitation Pay Monthly Claim Form), dated 
7 December 2007, missing page three of three.

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.  On 24 January 2003, the applicant, a staff sergeant, pay grade E-6, in the Ohio Army National Guard, was ordered to active duty with his unit in support of Operation Enduring Freedom.  He served in the Kuwait/Iraq Theater from 
29 March 2003 to 24 March 2004.

3.  A DA Form 3349, dated 11 November 2003, indicates that the applicant was under evaluation for arthritis in his shoulder.  He was placed on a temporary physical profile with no duty limitations.  He was to perform physical training at his own pace and distance, walking or running.

4.  On 15 May 2004, the applicant was released from active duty.  His period of service was characterized as honorable.  He had completed 1 year, 3 months, and 22 days of creditable active duty during this period.

5.  A DA Form 2173, dated 6 December 2004, indicates the applicant's carpal tunnel syndrome was aggravated by his driving duties while in Iraq.  There was no formal line of duty.  His injury was considered to be in the line of duty.
6.  A DA Form 2173, dated 9 December 2004, indicates the applicant had been previously seen in the emergency room on 14 June 2004 for a burning abdominal pain (gastritis).  The report indicates that the medication (celebrex) prescribed for treatment of his carpal tunnel syndrome caused him stomach pain and discomfort.  There was no formal line of duty.  His condition was considered to be in the line of duty. 

7.  A USARC Form 46-2, dated 20 December 2004, indicates the applicant was not fit to perform his military duties as a heavy vehicle driver for an indefinite period commencing on 16 May 2004.  It further indicates he was unfit to perform his civilian job as a trailer mechanic during the period 16 May to 1 November 2004.  

8.  A DA Form 3349, dated 31 December 2004, extended the applicant's temporary physical profile.

9.  A DA Form 3349, dated 1 May 2005, indicates the applicant's profile was made permanent due to carpal tunnel syndrome and osteoarthritis of multiple joints.  The applicant still met retention standards.

10.  A DA Form 7349 (Initial Medical Review - Annual Medical Certificate), dated 
13 January 2005, indicates that the applicant had a history of wrist and knee pain with care following deployment. 

11.  A DA Form 7574-1, dated 28 February 2006, indicates the applicant was not fit to perform military duties from 21 July to 18 August 2005.

12.  On 25 September 2006, the applicant's physical profile was modified to limit walking in boots to 1 mile, no marching with a rucksack, and the wear of wrist and elbow splints as needed.

13.  The applicant submitted two DA Forms 7574, dated 7 December 2007, claiming loss of civilian pay for the periods 21 to 31 July 2005 and 1 to 18 August 2005.  The available forms are incomplete in that the third page is missing.  He claimed a loss of pay totaling $4,341.12.  His civilian employer verified the applicant's employment and that he had an employee income protection plan from which he received $1,500.00.  The claim was submitted to the 88th Regional Readiness Command where it was disapproved on 20 March 2008.  The reason for this disapproval is unavailable.

14.  A DA Form 3349, dated 30 September 2008, indicates that his physical profile was now temporary with an expiration date of 27 December 2008.  

15.  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.

16.  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. 

17.  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 contends that he has submitted 16 claims for payment of incapacitation pay but he has not received it.  

2.  The applicant’s DA Forms 2173 indicate his commander determined the applicant’s injuries were incurred and/or aggravated while performing in the line of duty.

3.  The DA Form 7574-1, dated 28 February 2006, indicates that the applicant was unfit to perform military duty during the period from 21 July to 18 August 2005.  

4.  The DA Form 7574, submitted by the applicant, on 7 December 2007, indicates that his civilian employer verified that the applicant was not able to work during the period 21 July to 18 August 2005 and he had a loss of pay totaling $4,341.12.  The employer also stated that he received $1,500.00 from an income protection plan, reducing his monetary loss to $2,841.12.  The approving authority disapproved the applicant's claim on 20 March 2008.

5.  The DA Form 7574 submitted by the applicant is incomplete in that it is missing the last page.  Without the complete DA Form 7574 and the disapproval reason available, in the absence of evidence to the contrary it is presumed that the approving authority acted in accordance with law and regulations applicable at the time when it disapproved the applicant's request for incapacitation pay.

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 for correction of the records of the individual concerned.




      _______ _   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)                                         AR20080020102



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ABCMR Record of Proceedings (cont)                                         AR20080020102



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