MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:             30 March 2000                  
	DOCKET NUMBER:    AR1999028816

	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:

	Mr. 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 incapacitation pay be extended to the date of his separation. 

APPLICANT STATES:  That since his physician has stated that his disability occurred while he was performing active duty, his incapacitation pay should have been continued until he was separated for disability.

In support of his application he submits a letter from his State IG in which the IG stated that the National Guard Bureau (NGB) denied his request for extension of incapacitation pay because his disability appeared to be a service aggravation of an existing prior to service (EPTS) medical condition.  The EPTS finding was based on the applicant twice seeking medical care for back problems prior to the service related injury in question, once where he reported that he had experienced back degeneration for years, and based on the fact that his condition, spondylolisthesis, most commonly appears over time.

COUNSEL CONTENDS:  That the applicant’s request for extension of his incapacitation pay was denied because it was falsely thought his disability was the result of an aggravation of an EPTS birth defect.  Counsel argues that it is “difficult to imagine” how this pre-existing condition could be the cause of the applicant’s incapacitation since he served in many capacities for many years with his USAR unit after he was discharged from the Marine Corps because of his birth defect.  Counsel adds that he has attempted to resolve this issue with the NGB to no avail.  The NGB insists that the applicant must appeal his line of duty (LOD) finding and will not listen to him when he argues that it makes no sense to appeal a LOD which is favorable to his client.

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

On 24 January 1997 a formal LOD investigation was completed on the service connection of the applicant’s spondylolisthesis, a condition which the applicant claimed he incurred while performing active duty from 10 to 24 August 1996.  As part of that investigation the applicant submitted a statement in which he said that on 23 August 1996 he moved close to 2,500 pounds of footlockers and study material.  At that time he felt a sharp pain in his lower back but continued to move the footlockers.  He didn’t feel any more pain that day but the following morning he awoke to stiffness and soreness in his lower back.  He states that he was not yet experiencing any great discomfort.  When he awoke on 26 August 1996 his back was hurting so badly he went to his civilian doctor who prescribed muscle relaxers and pain relievers.

The investigating officer of the formal LOD recommended that the applicant’s spondylolisthesis be considered to have been incurred in line of duty.  However, the Chief, National Guard Bureau approved the LOD as in line of duty, EPTS, aggravation.
On 30 March 1998 the applicant was considered by a physical evaluation board (PEB) which determined that he was physically unfit due to spondylolysis with spondylolisthesis, and recommended that he be discharged due to physical unfitness, rated 20 percent disabled, with severance pay.  The applicant did not concur with that finding and recommendation and demanded a formal hearing.

On 5 June 1998 a formal PEB was convened which made the same findings and recommendation as the informal PEB.

Accordingly, on 29 July 1998 the applicant was honorably discharged due to physical unfitness, rated 20 percent disabled, with severance pay.

On 11 July 1997, in response to a request to extend the applicant’s incapacitation pay beyond the 6 month limit for such pay,  the NGB sent a memorandum to the applicant’s command stating that based on the EPTS aggravation finding of the formal LOD the applicant should not have received any incapacitation pay.

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.

Army Regulation 135-381 provides the standards of eligibility for medical care, continuation of pay (incapacitation pay) and physical disability separation for reservists and guardsmen.  Paragraph 4-1 states that to be eligible for incapacitation pay reservists and guardsmen must be unable to perform normal military duty or show a loss of nonmilitary income, the individual must be disabled “while so employed”, and the disabling condition must have been incurred or aggravated while in a duty or travel status.

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.

Dorland’s Illustrated Medical Dictionary defines spondylolisthesis as “forward displacement of one vertebra over another, usually at the fifth lumbar over the body of the sacrum, or of the fourth lumbar over the fifth, usually due to a developmental defect in the pars interarticularis.”

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.  While the applicant claims he experienced pain in his back when he was moving footlockers, there is no evidence to support his claim.  He did not seek medical care for back pain until two days after his release from active duty.  If his medical condition was such that it would be aggravated by trauma or exertion, he could have just as easily done that after his release from active duty as during his active duty.

2.  Be that as it may, the applicant’s disability, as defined by Dorland’s Illustrated Medical Dictionary, is a developmental condition, not a condition which is caused by a trauma or exertion.  As such, a finding of EPTS was appropriate and should have precluded the award of any incapacitation pay, much less an extension of incapacitation pay over the 6-month maximum entitlement to that pay.

3.  In this regard the applicant’s counsel was given the proper advice by the NGB.  The controlling issue in determining the applicant’s entitlement to incapacitation pay was and is the LOD finding.  Counsel’s other contention, that his birth defect could not have caused the disability in view of the time that had transpired from his diagnosis of that condition, is also not accepted by the Board.  Developmental conditions are just that – developmental.  They worsen with time.  The applicant himself had admitted he had been experiencing back degeneration for years.

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	AR	
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	GRANT	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.