MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            10 November 1998
	DOCKET NUMBER:   AC98-08089A

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Ms. Irene N. Wheelwright		Member	
	Ms. Margaret K. Patterson		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
            records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That he be granted an extension of incapacitation pay for the period 11 February 1997 to 13 April 1998.

APPLICANT STATES:  In effect, that he was unjustly denied an extension of incapacitation pay for the period 11 February 1997 to 13 April 1998 by the National Guard Bureau (NGB) and the Department.  He further states that during the period from 4 August 1997 until his separation on 14 April 1998, he was unable to return to his civilian or military duties as a result of an injury that occurred while performing his military duties on 1 August 1996.  He goes on to state that his injury was determined to be in line of duty and aggravated by a condition that existed prior to service (EPTS); however, he contends that it was a result of a previous injury that occurred during annual training in 1988.  He contends that until the 1 August 1996 injury, he was fully fit to perform his duties, he was not under a doctor’s care, he did not have any physical impairments, and that the military should bear some responsibility for his injury in the way of incapacitation pay. 

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant, while serving in the pay grade of E-6 in the Louisiana Army National Guard (LARNG) on active duty for training on 1 August 1996, suffered a cervical strain to the left side of the neck when he tried to hold up a transmission that had slipped off of a jack.  He went on sick call and was diagnosed with muscle strain and back muscle spasms.

A line of duty (LOD) investigation was conducted on 8 August 1996 which determined that his injury was in line of duty -EPTS- for aggravation of strain to the left side neck and muscle strain with back spasms.

The applicant continued to experience pain and continued to receive medical treatment for his injuries.  He was granted incapacitation pay for the period 4 August 1996 to 10 February 1997 (6 months and 4 days).

He applied for an extension of his incapacitation pay through his chain of command to the NGB.  On 11 February 1997, the NGB denied his request and opined that the applicant was not entitled to incapacitation pay for his injury because it was deemed to have EPTS.  The NGB further advised that the applicant should be processed for separation if he was not fit for duty.

The applicant submitted an appeal of the NGB decision to deny him an extension of incapacitation pay through his chain of command.  His chain of command supported his request as did the LARNG Incapacitation Review Board. The review board contended that there was evidence that the applicant had been treated in 1988 for muscle spasms to the back on 8 February 1988 and that he was returned to duty on the same day.  It also opined that the LOD investigation in 1996 included documentation from his civilian injury in 1995, that the LARNG had historically continued incapacitation benefits until medical board proceedings had been completed, and that the applicant was not under a doctor’s care at the time he was ordered to active duty.  The review board further contended that the applicant should be provided treatment and compensation until he was returned to the physical condition he was in at the time he entered active duty.

The applicant’s request was forwarded to the Department of the Army, Office of the Deputy Chief of Staff for Personnel (ODCSPER) by the NGB for further review.  The ODCSPER concluded that the NGB had properly denied his request based on a condition that EPTS and noted that the applicant had submitted a claim for workman’s compensation in June 1995 based on a neck injury sustained in his civilian employment capacity.  On that claim was recorded an initial injury occurring on 23 May 1995 and a re-injury occurring on 13 June 1995 which was documented by subsequent medical records.  The ODCSPER opined that the applicant’s 1996 injury was properly diagnosed as an aggravation to his 1995 injury and that he had been sufficiently compensated for aggravation to his injury.  The ODCSPER denied his request on 15 May 1997.

On 11 July 1997 a medical review board met to review that applicant’s case and determined that he did not meet medical retention standards.  The applicant was notified of the findings of the board and disagreed with the findings.  He was subsequently notified that his case would be reviewed by a physical evaluation board (PEB), which on 30 December 1997 determined that the applicant was unfit (20%) and recommended that he be separated with severance pay.

The applicant was informed of his options concerning separation and on 6 February 1998 elected to be separated with disability severance pay in the pay grade of E-6.  Accordingly, he was honorably discharged with 20% disability effective 14 April 1998, under the provisions of Army Regulation 635-40.  

The applicant subsequently applied to the Department of Labor for workman’s compensation benefits and his request was denied on 3 October 1997 because it could not be determined that his injury was related to his injury in 1995.    

A review of the available records shows that on 31 May 1988, a LOD investigation was conducted regarding the applicant being treated at a civilian hospital for the onset of severe back pain that occurred while tightening the bolt of a tailgate of a military vehicle at the National Guard Armory.  He was returned to duty the same day and his injury was determined to be in the line of duty.
Army Regulation 135-381 prescribes the policies and procedures for the administration and implementation of the incapacitation pay program as outlined in section 37, tile 37, United States Code.  It states, in pertinent part, that incapacitation pay may be paid for up to a maximum of 6 months.  Payments for more than 6 months may only be made with Secretary of the Army approval.  The law permits additional payments only when in the opinion of the Service Secretary, it is clearly in the interest of fairness and equity to do so.  Only the most meritorious requests will be approved.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The evidence of record shows that applicant was authorized incapacitation pay for the maximum 6-month period and that his request for additional pay was properly denied in accordance with applicable regulations. 

3.  The applicant’s contentions have been noted by the Board.  However, they are not supported by the evidence submitted with his application nor the evidence of record.  The LOD investigation found that the applicant’s injury was an aggravation of a 1995 injury on his civilian job that is more closely related to the 1996 injury than the 1988 injury he is contending was the original injury.  Therefore, in the absence of evidence to the contrary, it must be presumed that the medical determination made in this case is correct.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___cmf__  ___inw __  __mkp __  DENY APPLICATION

						Loren G. Harrell
						Director