IN THE CASE OF:	  

		BOARD DATE:	  11 August 2011

		DOCKET NUMBER:  AR20110003599 


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 entitlement to incapacitation pay from 8 June to 28 September 2002. 

2.  The applicant states she was injured in March 2002 while attending a military school and had to undergo surgery.  At the time, she was a drilling Reserve Component (RC) Soldier with the 316th Adjutant General (Postal) Company and had to be extended on active duty to receive medical care.  She was unable to return to her civilian job.  Upon her return to the unit and subsequent to a medical evaluation at West Point she was authorized incapacitation pay from 8 June to 28 September 2002.  Her unit administrator failed to complete the paperwork and process her pay.  Several years after not receiving her pay and as late as 2005, she sent a request through her chain of command to begin a new process.  A battalion sergeant assured her he would get her pay processed but nothing came out of that.  

3.  The applicant provides:

* Line of Duty Determination Memorandum
* DA Form 2173 (Statement of Medical Examination and Duty Status)
* Orders T-01-200185 (Active Duty for Training (ADT)) and amendments
* Statement from a medical doctor
* Medical Consultation Sheet
* Chronological Record of Medical Care
* DA Form 3349 (Physical Profile)
* Authorization for medical care 
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.  Having had prior enlisted service in the Regular Army and the Alabama Army National Guard (ALARNG) the applicant was appointed as a Reserve commissioned officer in the rank of second lieutenant and executed an oath of office on 16 July 2000.

3.  On 7 January 2002, the U.S. Army Reserve Personnel Command, St. Louis, MO, ordered her to ADT for 97 days, from 3 March to 22 July 2002, to attend the Adjutant General Basic Officer Course (OBC) at Fort Jackson, SC.  She entered ADT on 2 March 2002 and successfully completed OBC from 4 March to 7 June 2002.  

4.  On 25 March 2002, while attending OBC she sustained an injury to her achilles tendon while playing basketball.  She was transferred to Moncrief Army Community Hospital where she was diagnosed with an achilles tendon rupture.  Her injury would be determined in line of duty.

5.  On 22 May 2002, by memorandum, her orthopedic doctor indicated he performed achilles repair on 27 March 2002 and placed her in a cast for 6 weeks and a removal cam-walker for another 6 weeks.  With physical therapy, she would be able to walk normally without a brace in June 2002 and should be able to return to her civilian job in 6 weeks. 

6.  On 23 July 2002, the U.S. Army Reserve Personnel Command, St. Louis, MO, extended her ADT orders to end on 31 August vice 22 July 2002, for the purpose of completing her medical care.



7.  On 30 July 2002, by memorandum, an official at the U.S. Army Medical Activity (MEDDAC) indicated the applicant was authorized follow-up medical care at West Point, NY, on 12 August 2002 for a fit for duty examination.  The same memorandum indicated that:

* The estimated length of recovery time was 6 to 8 weeks
* Incapacitation pay was authorized from 8 June to 28 September 2002
* Can the member perform her civilian duties: Yes
* Can the member perform her military duties: Yes

8.  An advisory opinion was obtained from the U.S. Army Reserve Command (USARC), Fort McPherson, GA, in the processing of this case.  An official recommended disapproval and stated:

	a.  Incapacitation pay compensates for lost military/civilian wages during the period a Soldier is determined to be unable to perform civilian or military duties.  Maximum compensation will not exceed military pay.  Finance records document the payment of active duty performance by using code "50" and incapacitation pay by using code "10."  The applicant's military pay records show she had a code of "50" from 8 June through 31 August 2002.   

	b.  The applicant continued to obtain and perform duty under military orders during the inclusive period of 3 March through 31 August 2002.  As indicated in her finance records she received full military pay for this timeframe voiding any entitlement to incapacitation pay for this period.  

	c.  As for the period 1 through 28 September 2002, the MEDDAC memorandum stated the applicant was authorized incapacitation pay from 8 June to 28 September 2002; yet, the same memorandum also stated the applicant was able to perform both her civilian and military duties.  Since the applicant was able to perform military duties and she did not submit sufficient evidence to substantiate a deterioration of her medical condition after that time it must be presumed her condition remained constant during this period; therefore, she was able to perform her military duties and she should not be eligible for incapacitation pay.  

9.  She was provided a copy of this advisory opinion but she did not respond. 

10.  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.

11.  Public Law 100-456, FY 1989, which amended Public Law 99-661, states, in pertinent part, that a member of an RC of a uniformed 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 in the line of duty while performing active duty; in the line of duty while performing inactive active duty; and 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.

12.  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.  

13.  Army Regulation 135-381 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 line of duty investigation is a prerequisite for receiving incapacitation pay.  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 entered ADT on 3 March 2002 and sustained a line of duty injury while attending OBC.  Her ADT orders were extended through 31 August 2002 to enable her to complete her medical treatment.  The MEDDAC memorandum indicated she was authorized incapacitation pay from 8 June through 28 September 2002 (one day after the date she completed OBC).  However, that same memorandum indicated she was able to perform her military and civilian duties.  

2.  She is not entitled to incapacitation pay because she was receiving active duty pay and her condition did not prevent her from performing her military or civilian duties.  Her pay records indicate she continued to receive active duty pay from 8 June through 31 August 2002.  The active duty pay that she received would have made entitlement to incapacitation pay invalid during this period.  Additionally, she did not submit any evidence to show her condition worsened during the period 1 through 28 September 2002 or that her condition prevented her from performing her military or civilian duties.  

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)                                         AR20110003599



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ABCMR Record of Proceedings (cont)                                         AR20110003599



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