IN THE CASE OF:	  

		BOARD DATE:	  12 April 2011

		DOCKET NUMBER:  AR20100011945


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, his records be corrected to count the period of time between 1 May 2007 and 26 January 2009 as active service and that he be so compensated.

2.  The applicant states he was on Active Duty for Special Work (ADSW) with the District of Columbia Army National Guard (DCARNG) from 1 October 2006 to 30 April 2007.  While on authorized leave in Jamaica, he had a traffic accident which he attributed to the onset of post traumatic stress disorder (PTSD).  He was admitted to Walter Reed Army Medical Center (WRAMC) for treatment on 17 March 2007.  Following treatment, he was placed on convalescent leave for 30 days.  When he returned from leave, he was notified he would be separated from ADSW.  This was improper because his PTSD had been aggravated by his accident.  He received 6 months of incapacitation pay, but he was denied incapacitation pay beyond 6 months.

3.  The applicant provides:

* DA Form 31 (Request and Authority for Leave)
* DA Form 2173 (Statement of Medical Examination and Duty Status)
* A 4-page Narrative Summary and Patient Discharge Instructions from WRAMC
* WRAMC memorandum for convalescent leave with DA Form 31
* DCARNG memorandum, dated 28 March 2007 removing him from the Active Guard Reserve (AGR) Mobilization Augmentee Backfill program
* Orders D357-11, US Army Physical Disability Agency (USAPDA), dated 22 December 2008, placing him on the Temporary Disability Retired List (TDRL)
* Orders 033-137, DCARNG, dated 2 February 2009, separating him from the ARNG
* Two pages entitled "1LT (First Lieutenant) A---- J---- Payment History
* Undated letter from a clinical psychologist to DC Rehabilitation Service Administration
* Memorandum for "Troop Command, DC NG; H-----, A----- COL (Colonel), 2001 E. Capital [sic] St. SE Washington DC 20003, undated
* Three-page Memorandum for Walter Reed Physical Evaluation Board (PEB) Psychiatric Narrative Summary, dated 30 September 2008
* Three-page Radiologic Examination Report, dated 30 March 2007
* Record of Inpatient Treatment, dated 15 April 2007
* Two-page Radiologic Examination Report, dated 30 March 2007
* Department of Veterans Affairs (VA) entitlement statement, dated 12 June 2009

CONSIDERATION OF EVIDENCE:

1.  The applicant is a retired 1LT with former service in the DCARNG.  He was retired on 26 January 2009 and placed on the TDRL on 27 January 2009 in accordance with the VA Schedule for Rating Disabilities (VASRD), section 4.129 and the 2008 National Defense Authorization Act (NDAA), section 3.1.  The VASRD section 4.129 states:  “When a mental disorder that develops in the service as a result of a highly stressful event is severe enough to bring about the veteran’s release from active military service, the rating agency shall assign an evaluation of not less than 50 percent and schedule an examination within the 
6-month period following the veteran’s discharge to determine whether a change in evaluation is warranted.”

2.  During the 2003-2004 timeframe, the applicant was deployed to Iraq in support of Operation Iraqi Freedom.

3.  In 2007, the applicant was performing ADSW with the DCARNG.  On 20 February 2007, he completed a DA Form 31 requesting 2 days of ordinary leave.  The form shows:

* he requested ordinary leave for Thursday 8 March 2007 and Friday 
9 March 2007
* He indicated his leave address as XXXX Morningside Drive, NW, Washington, DC
* he departed on ordinary leave at 0001 hours, on 8 March 2007
* he was granted a 2-day extension on Saturday, 10 March 2007
* he returned to duty at 2300 hours, Sunday, 11 March 2007

4.  The DA Form 2173, which is dated 22 March 2007, indicates the following:

* he was involved in a motor vehicle accident in Montego Bay, Jamaica on Monday, 12 March 2007
* he was admitted to Cornwall Regional Hospital, Mt Salem, Montego Bay, St James, West Indies, Jamaica at 1911 hours, 12 March 2007
* he was listed as being on active duty, on leave

5.  On 17 March 2007, the applicant was admitted to WRAMC with a diagnosis of right open patella fracture and a lisfranc injury to his right foot.  He was treated and placed in a long leg cast on 20 March 2007.  He was discharged on 21 March 2007 and given 30 days of convalescent leave.

6.  On 28 March 2007, the applicant received notification from Joint Force Headquarters, DCARNG he would be released from his ADSW assignment effective 30 April 2007.

7.  The applicant received his active duty salary as incapacitation pay for 
6 months from May through October 2007.  He also began receiving VA disability compensation from June 2007.  He claims he worked at a civilian job from January through March 2008.

8.  In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Policy Division, National Guard Bureau (NGB) which recommends partial approval by paying incapacitation pay from 1 November 2007 through 25 January 2009.  The opinion states:

* the applicant was involved in a motor vehicle accident while on leave, a line of duty investigation was completed, and incapacitation pay was approved by the DCARNG for 6 months
* the Chief, NGB is approval authority for incapacitation pay beyond 
6 months
* the DCARNG claims the applicant had civilian employment from 15 January through 14 March 2008
* the applicant claims he has never worked since 30 April 2007 when he was released from active duty
* any incapacitation pay should cease upon the applicant's retirement on 26 January 2009

9.  A copy of the advisory opinion was provided to the applicant.  He did not respond within the given time frame.

10.  Army Regulation 135-381 (Incapacitation of Reserve Component Soldiers) prescribes policies and implements statutory authorities regarding incapacitation pay and allowance and reviews requirements on these entitlements for Reserve Component (RC) Soldiers.  It provides:

   a.  The objective of the RC Incapacitation System is to compensate, to the extent permitted by law, members of the RC who are unable to perform military duties and/or who demonstrate a loss in civilian earned income as a result of an injury, illness, or disease incurred or aggravated in the line of duty and to provide the required medical and dental care associated with the incapacitation. 

   b.  Members authorized incapacitation pay under 37 USC 204(g) will not be allowed to attend inactive duty training periods or to acquire retirement points for drills.  However, a member may earn retirement points in order to satisfy the requirements for a qualifying year of service by completing correspondence courses.

   c.  A member who is unable to perform military duties because of incapacitation is entitled to full pay and allowances, including all incentive pay to which entitled, less any civilian earned income for the same period the member receives incapacitation pay (see DOD 7000.14-R, Volume 7A for entitlements).

   d.  Members able to perform military duties, but demonstrating a loss of earned income as a result of an in-the-line-of-duty incapacitation, will be compensated for lost earned civilian income.  The compensation under this provision will be the lesser of the amount of demonstrated lost civilian income in the amount not to exceed military pay and allowances for which the member would be entitled if serving on active duty.  Members will be compensated for loss of earned civilian income in accordance with 37 USC 204(h) and 
DOD 7000.14-R, Volume 7A, table 57-3.

11.  Duration of incapacitation pay:

   a.  Incapacitation pay will be 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.

   b.  Payment in any particular case may not be made for more than 6 months without review of the case by appropriate headquarters (Chief, NGB).
   
   c.  To ensure that continuation of incapacitation pay is warranted under this regulation, a review will be made every 6 months.
   d.  Incapacitation pay will continue as long as the conditions warranting the incapacitation pay exist and the approving authority determines that it is in the interest of fairness and equity to continue the payment.

   e.  When incapacitation lasts for over a year, the case should be processed through the Physical Disability Evaluation System for disability separation or retirement.  Incapacitation pay will end upon retirement, separation for physical disability, or determination by military service medical personnel that the member has recovered sufficiently to perform military duties, when actually returned to military duty, whichever occurs first.

   f.  Review of individual cases will commence far in advance of the end of each 6-month period so as to ensure that incapacitation pay will not be interrupted if it is determined that it should be continued.

   g.  Management of incapacitation payments to Soldiers of the ARNG/ARNGUS will be assigned as follows:

* For claims up to 6 months – State Adjutants General
* For claims greater than 6 months – Chief, NGB

12.  Army Regulation 600-8-10 (Leaves and Passes) prescribes the policies and mandated operating tasks for the leave and pass function of the Military Personnel System.  It provides:

   a.  Soldiers are authorized, on the average, to take 30 days of leave a year.  Ordinary leave is a chargeable leave granted in execution of the commander's annual leave program.  The unit commander or designee is the approval authority for ordinary leave requests.  The Rules for processing leave are as follows:

   b.  The DA Form 31 will be used for requesting leave.

   c.  Chargeable leave will begin and end on post, at the duty station, or in the location from which the Soldier regularly commutes to duty.
   
   d.  Leave will be charged for day of return unless:  the Soldier works more than half of the normally scheduled duty day, or the Soldier returns on a regularly scheduled nonduty day.

   e.  Leave is charged for a holiday if it falls on or within the effective dates of leave.
   
DISCUSSION AND CONCLUSIONS:

1.  The applicant's duty status at the time of his motor vehicle accident injury is questionable.  Clearly, his DA Form 31 shows he was supposed to be on leave from 8-11 March 2007 in Washington, DC.  It shows he signed in off of leave at 2300 hours, 11 March 2007.  Yet the DA Form 2173 shows he was injured in a motor vehicle accident in Montego Bay, Jamaica at 1911 hours, 12 March 2007.

2.  The record suggests the applicant was not in the vicinity of his leave address and was absent without leave (AWOL) in another country when he was injured.  This would cause his injuries to be incurred "not in the line of duty" and he would not have been eligible for incapacitation pay.

3.  The applicant wants the period from 1 May 2007 to 25 January 2009 counted as active service and he wants to receive all due pay and allowances.  The applicant was not on active duty during this time.  The fact the USAPDA revisited his PTSD and granted him a 50 percent disability rating and TDRL retirement under the provisions of VASRD section 4.129 is of no consequence to his status prior to 26 January 2009, the date he was placed on the TDRL.  He is not entitled to active duty service credit and/or pay and allowances for the period 1 May 2007 through 26 January 2009.

4.  The NGB essentially recommends that applicant be granted incapacitation pay for the period from 1 November 2007 through 25 January 2009.  Given the applicant's questionable duty status on 12 March 2007 when he was injured in Montego Bay, Jamaica, and given that his civilian pay status from May 2007 to January 2009 is undetermined, that recommendation should be denied.

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)                                         AR20100011945



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ABCMR Record of Proceedings (cont)                                         AR20100011945



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