MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            30 March 2000                  
	DOCKET NUMBER:    AR1999018239

	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. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Ms. Barbara J. Ellis		Chairperson	
	Mr. Hubert O. Fry, Jr.		Member	
	Mr. Ernest W. Lutz, Jr.		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 discharge with severance pay, rated 10 percent disabled, be revoked and it be shown that he completed 20 qualifying years of service for retired pay.

APPLICANT STATES:  That he was told by a military physician that he could perform his military duties within the guidelines of his physical profile limitations, but he could not work his civilian job.  He believes that the only reason he was medically discharged was to terminate his incapacitation pay due to his inability to return to his civilian job.  The applicant states that it was not fair to discharge him when he had 19 years, 2 months and 20 days of qualifying service for retired pay at age 60.  The applicant also contests the Physical Evaluation Board’s (PEB’s) finding that his disability existed prior to service (EPTS).

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

On 9:30 PM on 9 February 1996, the applicant, a staff sergeant assigned to a USAR troop program unit, was a passenger in a military bus that was struck from behind by another vehicle causing the duffel bags being transported in that bus to fall forward and hit the applicant and other passengers.  The applicant was performing 2 days of active duty for training at the time.

On 20 October 1996 the applicant was given a permanent physical profile which precluded the applicant from doing 24 out of 29 physical training exercises, 11 out of 12 aerobic conditioning exercises, and wearing a military backpack, firing a rifle, marching over 1 mile, or lifting over 10 pounds.

On 29 April 1997 an informal PEB was convened and determined that the applicant was physically unfit due to mechanical low back pain secondary to degenerative disc disease.  The PEB continued that “The auto accident (REF:  LOD) was not the cause of the soldier’s disease . . .”  The PEB added “There is compelling evidence to support a finding that the current condition is not the proximate result of performing duty and there is not a causal relationship between your military duty and your present condition.”  The PEB recommended that the applicant be discharged without separation benefits.

The applicant appealed the findings and recommendation of his PEB.  Based on the applicant’s appeal the informal PEB altered its findings to show that his EPTS mechanical low back pain was service aggravated.  The PEB recommended that he be discharged with severance pay, rated 10 percent disabled.

On 23 July 1997 the applicant was honorably discharged due to physical disability with severance pay, rated 10 percent disabled.

A chronological statement of retirement points shows that on Retirement Year Ending 15 April 1995 the applicant had 18 years and 2 days of qualifying service for retired pay at age 60.

Army Regulation 600-8-1, paragraph 41-8 states, in pertinent part, that if an 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 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board.  Those members who do not meet medical retention standards will be referred to a physical evaluation board for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.  For example, a noncommissioned officer who receives above average evaluation reports and passes Army Physical Fitness Tests (which have been modified to comply with the individual’s physical profile limitations) after the individual was diagnosed as having the medical disqualification would probably be found to be fit for duty.  The fact that the individual has a medically disqualifying condition does not mandate the person’s separation from the service.  Fitness for duty, within the perimeters of the individual’s grade and military specialty, is the determining factor in regards to separation.  If the PEB determines that an individual is physically unfit, it recommends the percentage of disability to be awarded which, in turn, determines whether an individual will be discharged with severance pay or retired.  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.  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’s contention that he was fit for duty within his profile limitations is not accepted by the Board.  The applicant had permanent, severe physical limitations placed on him.  Unlike the Regular Army, soldiers in USAR Troop Program Units cannot, as a general rule, be reassigned to positions where they can be used with severe profile limitations.  A USAR unit is generally geographically isolated from other USAR units and has a specified authorization of personnel.
 
2.  Incapacitation pay is a short term vehicle for providing reservists disabled in line of duty income while they recuperate or are medically boarded.  This is amply demonstrated by the 6-month limitation on award of that pay.  As such, the actions taken by the applicant’s unit to either have him terminated from incapacitation pay or medically separated was proper.

3.  Since the applicant is not contesting his percentage of disability, there is no reason for the Board to consider whether his physically unfitting condition was an aggravation of an EPTS medical condition.  However, the Board would not have been able to consider that aspect of his application because the applicant’s records do not contain his medical board.
 
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

__bje____  _hof_____  _ewl____  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999018239	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000330	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.05	
2.		
3.		
4.		
5.		
6.