IN THE CASE OF:	  

		BOARD DATE:	  31 January 2013

		DOCKET NUMBER:  AR20120009648 


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 back basic pay, drill pay, or incapacitation pay.

2.  The applicant states he was erroneously released from active duty on 3 January 2007 while serving in the California Army National Guard (CAARNG) Active Guard Reserve (AGR).  He claims that during this period of active duty he incurred medical conditions that required extensive medical treatment and was never afforded due process by being referred to the Army Physical Disability Processing System (PDES) for separation processing through medical channels.  He states he was then erroneously discharged from the CAARNG without referral to a PDES.  Based on the Army Board for Correction of Military Records (ABCMR) grant of full relief in Docket Number AR20090016282 on 8 July 2010, which resulted in his processing through the PDES and his medical retirement effective 16 May 2008, he believes he remains entitled to either basic pay, drill pay, or incapacitation pay for the period between his erroneous release from active duty (REFRAD) on 3 January 2007 and his retirement date of 16 May 2008.

3.  The applicant provides a packet containing regulatory guidance, legal case law precedent, separation documents, and other miscellaneous documents in support of his request.



CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized by the ABCMR in Docket Number AR20090016282 on 8 July 2010 in consideration of the applicant's earlier request for referral to the PDES.

2.  On 8 July 2010, the ABCMR recommended that the Office of the Surgeon General (OTSG) arrange the applicant's physical evaluation processing through the PDES and that, in the event that a formal physical evaluation board (PEB) became necessary, all required reviews and approvals be made subsequent to completion of the PEB.  The ABCMR made no specific recommendations regarding pay and allowances other than the inference that pay and allowances due as a result of the outcome of the PEB, to include possible disability separation or disability retirement, could follow.

3.  The applicant's record shows he was REFRAD on 3 January 2007 under honorable conditions and returned to the CAARNG.  He was separated by reason of misconduct – drug abuse.

4.  On 16 May 2008, the applicant was honorably discharged from the CAARNG by reason of “Placement on the Permanent Disability Retired List” (actually, by reason of being medically unfit for retention in the Selected Reserve and transferred to the Retired Reserve).

5.  On 19 September 2011, the applicant's case was evaluated by a PEB convened based on the recommendation of the ABCMR.  The PEB determined the applicant should be permanently retired by reason of disability based on service-connected medical conditions that included asthma (disability rating of 30 percent), hip replacement (disability rating of 30 percent), and degenerative arthritis of the right knee (disability rating of 10 percent) and recommended a combined disability rating of 60 percent.  The PEB noted that these conditions were not considered unfitting for further active duty service at the time of his REFRAD and indicated they were applicable at the time of his discharge from the CAARNG as service-connected conditions incurred on active duty.  The PEB further noted the applicant's "retirement is not based on disability from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurring in [the] line of duty during a period of war as defined by law" and "did not result from a combat related injury."

6.  On 4 October 2011, the applicant concurred with the findings and recommendations of the PEB and waived a formal hearing of his case.  On 7 October 2011, the PEB proceedings were approved by the proper authority on behalf of the Secretary of the Army.
7.  On 19 October 2011, the U.S. Army Physical Disability Agency issued Orders D 292-03 directing the applicant's release from assignment and duty because of physical disability incurred while entitled to basic pay and under conditions that permit his retirement for permanent disability.  The orders directed his placement on the Retired List in the grade of staff sergeant/E-6 effective 16 May 2008 by reason of permanent disability rated at 60 percent.

8.  In connection with the processing of this case, an advisory opinion was obtained from the Acting Chief, Personnel Policy Division, National Guard Bureau (NGB), who recommends approval of the applicant's request.  He states the applicant was granted full relief under the previous ABCMR decision; however, his pay has not been properly processed.

9.  On 27 November 2012, the applicant was provided a copy of the NGB advisory opinion for an opportunity to reply to or rebut its contents.  To date, he has failed to reply.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES.

	a. Paragraph 3-1 contains guidance for standards of unfitness because of physical disability.  It states the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.

	b.  Paragraph 3-2b(1) states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

	c.  Paragraph 3-2b(2) states when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit.  The presumption of fitness may be overcome if the evidence establishes that the Soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank, or rating for a period of time because of disability.  There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions.

11. Department of Defense Directive (DODD) 1241.1 (Reserve Components Incapacitation Benefits) states the objective of the Reserve incapacitation benefit system is to compensate, to the extent permitted by law, members of the RC who experience incapacitation or loss of civilian earnings as a result of an injury, illness, or disease incurred or aggravated in LOD and provided the required medical and dental care was associated with the incapacitation.

12.  DODD 1241.1 states members authorized incapacitation pay will not be allowed to attend inactive duty training (IDT) or to acquire retirement points for drills.  Members unable to perform full military duties due to incapacitation are entitled to full pay and allowances, less any civilian earned income (for the same period as incapacitation pay is received).

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for basic pay, drill pay, or incapacitation pay has been carefully considered and found to have partial merit.  The evidence of record shows the applicant continued in an active status with his CAARNG unit during the period between his REFRAD on 3 January 2007 and his retirement by reason of permanent disability on 16 May 2008.  Therefore, it would be appropriate to correct the record to show he participated in all training assemblies conducted by his unit during this period and to provide him all back drill pay due as a result.

2.  The evidence of record shows the PEB determined the applicant's medical conditions were not unfitting for continued active duty service at the time of his REFRAD on 3 January 2007 and the applicant concurred with the findings and recommendations of the PEB.  Further, the applicant was REFRAD for misconduct and there is no evidence that his disabling medical conditions contributed to the misconduct that resulted in his separation.

3.  In addition, the applicant's PDES processing while undergoing administrative separation action would have required a recommendation from the general court-martial convening authority.  As a result of this and the applicant’s concurring with the findings and recommendation of the PEB, the evidence is not sufficiently compelling to support payment of basic pay for active duty service subsequent to his REFRAD.

4.  The evidence of record and independent evidence submitted by the applicant fails to show he applied for or was granted incapacitation pay by proper NGB authority during the period from the date of his REFRAD on 3 January 2007 to his retroactive retirement date of 16 May 2008.  Further, he has provided no evidence of lost civilian income during this period.  As a result, there is an insufficient evidentiary basis to support payment of incapacitation pay.  
5.  Further, DODD 1241.1 states members authorized incapacitation pay will not be allowed to attend IDT or to acquire retirement points for drills.  Since paragraph 1 of this section corrects his records to show he attended IDT, he is not eligible for incapacitation pay.

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 is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army and State ARNG records of the individual concerned be corrected by amending the unit training record and his statement of retirement points to show he participated in all training assemblies conducted between 7 January 2007 and 15 May 2008 and by submitting these dates to the Defense Finance and Accounting Service for payment of back pay and allowances.

2.  The Board further determined 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 payment of active duty basic pay and/or incapacitation pay.



      _____________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)                                         AR20120009648



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120009648



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1