IN THE CASE OF:	  

		BOARD DATE:	  24 August 2010

		DOCKET NUMBER:  AR20100007342 


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, correction of his military records to show he is entitled to receive incapacitation pay for the period from February 2007 to April 2008.

2.  The applicant states he was injured while on active duty in May 2005.  He had to have four surgeries on his lower back.  After the first two surgeries incapacitation pay was stopped pending completion of a medical evaluation board (MEB).  After the MEB was completed he was told that the paperwork was submitted for continuation of his incapacitation pay until after he had been placed on the temporary disability retired list (TDRL).  He believes that the medical branch either held or lost the paperwork.  The noncommissioned officer who was working with him retired.  He contends that he turned in every piece of paper within 24 hours of receiving it.  The medical branch did not attempt to pursue the matter and he did not get paid.  He feels he was mistreated because he had spoken with a member of the National Guard Bureau (NGB) who informed him that he should never have been taken off of incapacitation pay as long as he was being seen by his surgeon.

3.  The applicant provides copies of memoranda and emails from the Oklahoma Army National Guard (OKARNG), congressional correspondence, U.S. Army Physical Disability Agency (USAPDA) memorandum and TDRL orders, NGB Form 22 (Report of Separation and Record of Service), discharge orders, medical records, and eight DA Forms 7574-1(Military Physician's Statement of Soldier's Incapacitation/Fitness for Duty) and related documents.

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 NGB Form 22 shows that he enlisted in the OKARNG on
5 February 1992.  He attained the rank/grade of specialist (SPC)/E-4 on
17 October 1997.  Effective 30 April 2008, he was placed on the TDRL.

3.  The available medical records show diagnoses and treatments at various times between 17 May 1999 and 4 October 2007.

	a.  On 9 May 2005, the applicant felt a strain and a pop in his lower back while loading military vehicles with items weighing up to 100 pounds.  He was initially treated with Flexeril and Motrin which did not give significant relief.

	b.  On 23 June 2005, the applicant was diagnosed with degenerative disc disease with disc herniation and stenosis.

	c.  On 18 July 2005, the applicant underwent a medical procedure (epidural steroid injection).  He underwent additional epidural steroid injections in August and September 2005.

	d.  On 15 February 2006, the applicant underwent an operation on his lower back to decompress and fuse a section of his spine (L4-5) with bone grafting and a pedicle screw.

	e.  On 2 May 2006, the applicant underwent an operation on his lower back to decompress and fuse a section of his spine (L5-S1) with bone grafting and a pedicle screw.

	f.  On 29 June 2007, the applicant underwent an operation on his lower back to decompress and fuse a section of his spine (L3-4) with bone grafting and a pedicle screw.
	g.  6 September 2007, the applicant's doctor stated he could not return to work but would start weaning him into a smaller brace.

	h.  4 October 2007, the applicant's doctor stated he was not allowed to lift more than 25-30 pounds, no running, stooping or bending, no ladders, and no bending or twisting.

4.  The applicant's DA Forms 7574-1 show the following:

	a.  28 December 2006:  not fit to perform military duty from 15 February 2006 (still under medical care).

	b.  10 August 2006: not fit to perform military duties from 15 February to 
6 July 2006.

	c.  10 August 2006:  not fit to perform military duties from 6 July to 3 August 2006.

	d.  10 August 2006:  not fit to perform military duties from 3 to 31 August 2006.

	e.  undated and unsigned:  not fit to perform military duties from 15 February to 12 October 2006.

	f.  21 February 2007:  not fit to perform military duties from 8 January to 
1 May 2007.

5.  On 1 October 2007, the Chief, Department of the Army Actions Branch, NGB, Arlington, VA, informed the Adjutant General, OKARNG that the applicant's request for an extension of his incapacitation pay commencing from January 2007 was returned without action because of missing/expired documentation.  The applicant was given a suspense date of 19 October 2007 to submit the current Incapacitation Review Board Minutes, DA Forms 7574, 7475-1, and 7574-2.  State generated forms were not acceptable.  He also needed to submit medical documentation from January 2007 to the present, a current profile, and copies of all Physical Evaluation Board (PEB) paperwork.

6.  On 28 December 2007, the request for incapacitation pay was closed because the required documentation was not received.

7.  In an email, dated 19 September 2008, the applicant was informed by a member of the staff, OKARNG, that had he provided the proper medical


documentation his request for an extension of incapacitation pay would probably have been approved.  He was further informed that the Soldier is responsible for providing the documentation of his incapacitation.  Upon review of the medical records provided during the period 1 February 2007 through 30 April 2008, the required medical documents were not present.

8.  In the processing of this case, on 16 February 2010, an advisory opinion was obtained from the Chief, Personnel Division, NGB, Arlington.  Based on the applicant's DA Form 7574-1, dated 21 February 2007, and consultation with the NGB, Office of the Chief Surgeon, the opinion recommended approval of incapacitation pay for the period from 1 February to 1 May 2007.  It also noted that the applicant last received incapacitation pay on 30 January 2007.

9.  A copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  On 26 February 2010, the applicant responded to the advisory opinion.  He contends that he had his fourth surgery in June 2007 and he was unable to drive for the following 3 months and his recovery was for an even longer period of time.

10.  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.

11.  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.

12.  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, in effect, that his military records should be corrected to show he is entitled to receive an extension of his incapacitation pay for the period from February 2007 to April 2008.

2.  The available evidence clearly shows that the applicant was under a doctor's care from 9 May 2005 to 4 October 2007.  Unfortunately, the applicant has not provided any subsequent medical documentation.  Furthermore, he has not provided any documentation showing that he requested an extension of his incapacitation pay beyond 1 May 2007.

3.  The DA Form 7574-1, dated 21 February 2007, indicates that the applicant was unfit to perform military duty during the period from 8 January to 1 May 2007.

4.  The available evidence shows that the applicant last received incapacitation pay on 30 January 2007.

5.  In view of the above, at this time the applicant's request should be partially granted by authorizing him an extension of incapacitation pay from 1 February to 1 May 2007.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ____X___  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by


showing he was authorized an extension of incapacitation pay for the period       1 February to 1 May 2007 and paying him any pay due as a result of this correction.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to authorization for incapacitation pay for any period between 2 May 2007 and April 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)                                         AR20100007342



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ABCMR Record of Proceedings (cont)                                         AR20100007342



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