IN THE CASE OF:
BOARD DATE: 2 February 2012
DOCKET NUMBER: AR20110003968
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 that he be awarded additional drill points for the period 16 June - 1 September 1999. He is also requesting the Army Reserve Components Achievement Medal (ARCAM) based on the additional drill points requested.
2. The applicant states he sustained a line of duty injury on 16 June 1999 and was unable to drill or perform his civilian duties until he was returned to duty on
1 September 1999. He contends that during this period, he was placed on workman's compensation for pay but was not allowed to accumulate drill points which caused him to have a "bad year." He continues that as he is getting closer to receiving his 20-Year Letter, he is appreciating the value of having drill points for retirement purposes. He is requesting to be awarded points for two drills per day for the period he was injured. He further contends that when an active duty service member is injured, the military does not place the Soldier on workman's compensation. The service member is given a profile and continues to accumulate pay, benefits, and service time as they recover.
3. The applicant provides a letter from the Department of the Army Office of the Inspector General (IG), DA Form 2173 (Statement of Medical Examination and Duty Status), a medical record, and employer statements.
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. After having had prior service in the Regular Army, it appears the applicant enlisted in the U.S. Army Reserve (USAR) and subsequently enlisted in the Utah Army National Guard (UTARNG). He stated that he is currently serving in the U.S. Navy Reserve.
3. His exact service dates of service in the USAR and in the UTARNG cannot be confirmed based on the available documentation.
4. A DA Form 2173, dated 17 June 1999, indicates that on 16 June 1999 while in an active duty for training status he was injured when, while attempting to clear a jammed round on an M-60 Machinegun, the round exploded. The injury was found to be incurred in line of duty.
5. In the processing of this case, an advisory opinion was obtained from the National Guard Bureau, Chief, Personnel Policy Division. This office recommends disapproval of the applicant's request and states:
a. Per email from the UTARNG, the Soldier was injured during annual training. The injury prevented him from reporting to his civilian job and from attending drill which also discontinued the accrual of drill points. It is the Soldier's belief he was receiving workman's compensation during the period 16 June -
1 September 1999.
b. According to the Line of Duty Module and the UTARNG, the Soldier was receiving incapacitation pay (Tier I) not workman's compensation. Under the
Tier I category, the Soldier received full wages during the convalescent period.
c. If the Soldier is still a member of the UTARNG, he can make the year up and earn the additional points needed for retirement purposes. Based on the fact that the Soldier is not eligible to receive the retirement points in question, he does not qualify for the ARCAM at this time.
d. The State concurs with this recommendation.
6. The advisory opinion was provided to the applicant for comments and/or rebuttal. No response was received.
7. He provided a letter from the Department of the Army IG in which he was informed that the matters presented were not IG appropriate and he was advised to apply to this Board.
8. Army Regulation 135-381 (Incapacitation of Reserve Component Soldiers) provides that members authorized incapacitation pay under Title 37 U.S. Code, section 204(g) will not be allowed to attend inactive duty training (IDT) 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.
9. There are two tiers associated with incapacitation pay:
a. Tier I refers to claims by Soldiers who are unfit to perform their military duties as a result of an injury, illness, or disease caused by military service. A determination of fitness for duty must be made by a military medical physician. Eligible Soldiers are paid full military pay and allowances, less any civilian earned income received during the month of the claim, and are not eligible to draw retirement points.
b. Tier II refers to claims by Soldiers who are determined fit to perform their military duties by a military medical physician, but who are unable to perform their civilian jobs and can demonstrate a loss of civilian earned income. Eligible Solders will be reimbursed for lost civilian earned income up to full military pay and allowances and are eligible to draw retirement points.
10. DODI 1241.2, paragraph 6.2.1.1.2, states Soldiers authorized incapacitation pay "will not be allowed to attend inactive duty training periods or to acquire retirement points for drills." This applies to members unable to perform military duty (tier 1 cases).
11. Army Regulation 600-8-22 (Military Awards) states the ARCAM is authorized for award to Army personnel, including Active Guard Reserve officers, in the rank of colonel and below for exemplary behavior, efficiency, and fidelity while serving as a member of an Army National Guard or Army Reserve troop program unit or as an individual mobilization augmentee. Individuals must have completed
4 years of qualifying service on or after 3 March 1972 and before 28 March 1995. Beginning on 28 March 1995, the period of qualifying service for award of the ARCAM was reduced from 4 to 3 years. This change is not retroactive. Such years of qualifying service must have been consecutive. A period of more than 24 hours between Reserve enlistments or an officer's service will be considered a break in service. Credit toward earning the award must begin anew after a break in service.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the applicant suffered an injury on 16 June 1999 that led to his receipt of incapacitation pay. Being unable to perform military duties placed him in Tier I, which prevented him from attending drills and/or receiving retirement points for drills during the contested period.
2. There is no evidence showing he completed any correspondence courses during the contested period. Therefore, there is no evidence supporting his contention that he should be awarded additional drill points.
3. Based on the fact that the exact dates of his services in the USAR and UTARNG cannot be established, there is insufficient evidence to support awarding him the ARCAM at this time.
4. Based on the foregoing, there is no basis to grant the requested relief.
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) AR20110003968
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ABCMR Record of Proceedings (cont) AR20110003968
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