MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:                              
	DOCKET NUMBER: 

	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. Samuel A. Crumpler		Chairperson	
	Mr. Fred K. McCoy		Member	
	Mr. Mark D. Manning		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 given incapacitation pay from the date it was terminated and for it to be continued until he recuperates from surgical repair of his back.  He also requests that he be authorized surgery and all related medical care for his back injury.

APPLICANT STATES:  That he was unjustly denied continuation of incapacitation pay and surgery for his back injury.  Although he had pre-existing back problems, two physicians have stated that his disability is due to the aggravation of that pre-existing condition.  He quotes Army regulations and public law that provide for incapacitation pay in excess of 6 months and that provide for both incapacitation pay and medical care for aggravations of pre-existing conditions. 

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

On 13 June 1996, three days into a 7 day period of active duty for training, the applicant, a guardsman in the grade of Chief Warrant Officer 4 (CW4), was examined for back pain.  He reported that the pain had began sharply when he was lifting a 60 pound bail of wire.

A formal line of duty investigation was conducted on the applicant’s injury and it was determined that his disability was a result of a service aggravation of a 
pre-existing medical condition, a situation which was considered in line of duty.

The applicant was prescribed a 12 week course of conservative therapy and was given six months of incapacitation pay.

In a military medical consultation note dated 14 November 1996 it was stated that the applicant underwent laminectomy and decompression at L4-5 and L5-S1 in 1990 for back and bilateral leg pain.  He had dramatic improvement after the surgery of both his back and leg pain and was doing well until June 1996 when he lifted the bail of wire.  The physician noted the applicant’s current level of pain and limitation of motion, with resultant limitation of activities.  The physician then observed that “there is obvious disc degeneration at L4-5 and L5-S1” and opined that “his recurrent decompression is evidence of continued subacute spinal instability.”

Upon reaching the 6-month statutory maximum benefit for incapacitation pay, the applicant requested an extension of his pay.  That request was denied by the National Guard Bureau (NGB) on 2 June 1997.  In that denial the NGB stated that only the service aggravation of his pre-existing condition was considered in line of duty.  As such, he only should have been afforded medical care for the relief of the immediate aggravation of the problem, not continuous follow-up medical care, and he was not eligible for incapacitation pay.  The applicant unsuccessfully appealed that denial.

Army Regulation 600-8-1, the regulation which provides the guidance on conducting line of duty investigations, paragraph 41-8, states in pertinent part that if an Existing Prior to Service (EPTS) condition was aggravated by military service, the finding will be in line of duty.  If an EPTS condition is not aggravated by military service, the finding will be not in line of duty, EPTS.  Specific findings of natural progress of the pre-existing injury or disease based on well established medical principles alone are enough to overcome the presumption of service aggravation.  

Army Regulation 635-40, the regulation which governs physical evaluation boards (PEB’s), paragraph 4-19b, states that a PEB may decide that a soldier’s physical defect was EPTS, but must then determine whether the condition was aggravated by military service.  If the PEB determines that a soldier has an unfitting EPTS condition which was service aggravated, the PEB must determine the degree of disability that is in excess of the degree existing at the time of entrance into the service.  The method of determining the percentage of disability to be awarded in such cases is outlined in appendix B, item B-10 of this regulation.

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 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.  In this regard the Secretary has directed that only the most meritorious cases will be granted incapacitation pay beyond the 6-month statutory limitation.

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 nature of the applicant’s disability appears to be the deterioration of his pre-existing back condition.  This is supported by his physician’s statement that there was evidence of continued disc degeneration.  

2.  The regulations dealing with line of duty investigations and medical retirement make it abundantly clear that the Army only accepts liability for what is damaged or destroyed when a reservist is performing duty.

3.  While the applicant’s back problem became sharply worse when he lifted the roll of wire, there is no reason to believe that would not of occurred whether he was in uniform or not, or whether he lifted a heavy object or not.

4.  In view of the preceding conclusions, the Board does not consider the applicant’s case to be so meritorious as to warrant an extension of incapacitation pay beyond the 6-month limit.  As for surgery and follow-up medical care, medical care for reservists not performing extended active duty is limited to those conditions which were caused by the performance of duties.  Since the deterioration of his discs was not caused by his military service, it appears that medical care at the expense of the military was properly denied.

5.  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

_SAC___  _FKM ___  _MDM___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999016729	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.	128.14	
2.		
3.		
4.		
5.		
6.