MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:            1 August 2000                  
	DOCKET NUMBER:    AR200003697

	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. Carl W. S. Chun		Director	
	Mr. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Ms. Deborah S. Jacobs		Chairperson	
	Ms. Karol A. Kennedy		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:  In effect, that his incapacitation pay be extended beyond the 6-month limitation.

APPLICANT STATES:  He was unable to perform either his military duties or his civilian occupation due to his line of duty injury.  He believes he is due incapacitation pay for the entire period of his disability.

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

On 8 June 1997 the applicant, a Guardsman in pay grade E-6, was performing weekend drill with his unit.  After a morning Army Physical Fitness Test the applicant complained of pain in his knee and was transported to the nearest civilian medical treatment facility.  

His treatment records show that he “had an original knee injury to the right knee untreated in 1988.  He had swelling and did a long rehab with an uncertain diagnosis.”

In the processing of the applicant’s request for incapacitation pay he certified that he was unemployed at the time of the injury.  However, he received incapacitation pay based on his inability to perform his military duties.  When he had received the statutory 6-month maximum benefit (without waiver), his unit requested an extension of incapacitation pay for him.  That request was denied (the actual denial is not part of the applicant’s records).

Army Regulation 135-381 and title 37, U.S. Code, §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.  By all appearances the applicant aggravated a physical disability which was not service connected by the mere act of running.  And he was unemployed at the time of his re-injury.  Despite his pre-existing nature of his condition and his unemployment at the time of re-injury, he was given 6 months of full pay and allowances.  The Board considers this 6 months of pay as more than equitable under the circumstances.  However, the Board must agree that these circumstances do not meet the “meritorious” standard required to extend the 
6-month limit on incapacitation pay.

2.  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

__dsj____  __kak ___  __ewl___  DENY APPLICATION

		   Carl W. S. Chun
		   Director, Army Board for Correction
		   of Military Records

INDEX

CASE ID	AR2000035697	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000801	
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.	128.14	
2.		
3.		
4.		
5.		
6.