MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           3 March 1999
	DOCKET NUMBER:   AC98-12750
                                              AR1999015806

	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. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor		Chairperson	
	Mr. Edward Williamson		Member	
	Mr. Gary C. Miller		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 his incapacitation pay be extended from slightly less than 4 months to approximately 1 year and a month.

APPLICANT STATES:  He was injured while at his unit’s annual training and that injury kept him from working for over a year.  He believes he is entitled to incapacitation pay for the period he was out of work.

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

On 23 May 1990, the applicant, then a private first class, was performing annual training with his USAR unit when he was injured while playing basketball, part of the unit’s physical training program.  His injuries were to his index finger and knee.

He was treated for his injuries and released with directions to stay in his quarters for 1 day.

He was given follow-up medical care for his injuries.  In a consult dated 1 June 1990 the physician stated that the applicant would be disabled for a maximum of 60 days.  In a consult dated 11 June 1990 the physician stated that the applicant should be given physical profile restrictions until 1 September 1990.

The applicant applied for incapacitation pay.  In that application he stated that his employer laid him off because he had to hire a person to take his place because of his physical limitations as a result of his injury.  The applicant was given incapacitation pay from the date of his release from annual training to 1 September 1990.  

On 1 October 1990 the applicant was given a new physical profile giving him only mild physical limitations (a two designator).  In an examination on 23 October 1990 the physician officially returned him to work his regular job.

On 2 January 1991 the applicant underwent surgery for his knee but was returned to duty with moderate (a three designator) physical profile restrictions.

Army Regulation 135-381 and title 37, U.S. Code, section 204, provides for continuation of pay and allowances under certain circumstances to reservists who are disabled in line of duty.  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 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.  Incapacitation payments are made by the servicing Army finance and accounting office.

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

1.  The applicant received incapacitation pay from the date of his injury to the date his physical profile expired.  The two examinations conducted immediately following that expiration date confirmed the appropriateness of the original profile decision.

2.  While the applicant’s physical condition worsened after that date, requiring surgical intervention, he was never determined unable to perform military duty and was not employed at that time.  Without certification of inability to perform normal military duties or inability to perform his civilian occupation, he did not meet the statutory criteria for award of incapacitation pay.

3.  The Board notes that the applicant was injured while playing basketball.  While this is acceptable as a line of duty incident, it is the type of incident which could occur at any time, on or off duty.  As such, even if the Board were to approve an extension of incapacitation pay, it would not have been for a period to exceed the statutory 6 month entitlement limitation.  

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

__RVO__  _EW____  _GCM___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-12750/AR1999015806	
SUFFIX		
RECON		
DATE BOARDED	19990303	
TYPE OF DISCHARGE		
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	128.14	
2.		
3.		
4.		
5.		
6.