PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           16 November 2000                  
	DOCKET NUMBER:   AR2000039257

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Walter Avery, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Walter T. Morrison		Chairperson	
	Ms. Martha E. Schuler		Member	
	Mr. James E. Anderholm		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that he be awarded incapacitation pay and recovery of all lost wages.

3.  The applicant states that he suffered an injury during annual training.  To maintain his income he was forced to use all of his regular annual leave, sick leave, and to borrow 168 days of advance sick leave.  He states it would have been a hardship to allow his pay to stop for several reasons to include his need to make child support payments.  He believes he is entitled to receive payment for all lost wages, sick leave and advance sick leave.  The applicant submitted numerous letters that he wrote to his commanders, congressman and others and their replies.  None granted the applicant the relief he was seeking.

4.  He submitted his 1998 and 1999 W-2 forms for comparison purposes to indicate lost US Army Reserve (USAR) wages and a listing of leave periods taken from his civilian job from 17 August –26 December 1998.  The list does not have the applicant’s name on it, but does have handwritten notes to indicate advance leave taken and the comment “ I had to use 40 hours of leave without pay, because I was still sick.”

5. He also submitted a letter from his employer addressed to the Board to confirm that the applicant was advanced sick leave and had successfully paid back 161 hours of sick leave. 

6.  The applicant’s military records show that he reenlisted in the USAR on 5 October 1997 at the rank of master sergeant for a period of 3 years.  On that date he had a total combined active and inactive service of 28 years, 2 months, and 21 days.  

7.  On 13 August 1998 a DA Form 2173, Statement of Medical Examination and Duty Status was prepared.  It indicates that on 6 August 1998 the applicant was treated at Kenner Army Health Clinic for a head and scalp wound incurred while playing basketball.  The incident was considered to have been incurred in line of duty.

8.  On 19 August 1998 a Department of Veterans Affairs (DVA) medical record extract indicates that the applicant’s sutures were removed and he complained of episodes of dizziness.

9.  On 4 September 1998 DVA prepared a letter stating that the applicant was a patient at the DVA hospital and was being treated for a cerebral contusion and residual post-concussion syndrome.  It requested that that the applicant be excused from work duties until after his “CAT-scan” on 9 September 1998.

10.  On 13 October 1998 DVA prepared a letter stating that the applicant could return to full duty on 19 October 1998.

11.  On 13 May and 2 August 1999, Army Reserve Personnel Command prepared letters to update a congressman on the applicant’s claim.  The letters stated that the applicant might be entitled to receive incapacitation pay if military medical authorities certify he was unable to perform normal military or civilian duties.  Due to administrative error, the Commander did not counsel the applicant on his entitlements relative to his line of duty injury.  Therefore, the applicant was not aware of his responsibilities, which included initiating an incapacitation pay claim if he could not return to his civilian job.  On 3 May 1999 the applicant was evaluated at a military treatment facility and was scheduled for a “CAT- scan” in June 1999 and was scheduled for a final test at Walter Reed Army Medical Center on 9 August 1999.

12.  On 14 October 1999 the applicant completed an USAR Command Form   46-R, Incapacitation Pay Monthly Claim Form.

13.  On 25 October 1999 the applicant’s commander was advised that the applicant must repay any sick leave pay received before he would be entitled to incapacitation pay.  That if he resubmitted his claim with pay stubs or a statement from his employer showing that he had repaid his sick leave, his incapacitation pay claim could be reconsidered.

14.  On 7 January 2000 the Office of the Deputy Chief of Staff for Personnel responded to the applicant.  The applicant was informed that an approved line of duty entitled him to receive incapacitation pay if military authorities certified he was unable to perform normal military or civilian duties for a specific time period and that loss of civilian income was documented.  The letter cited the applicable law and stated it was unfortunate that the applicant was not counseled on his entitlements relative to his line of duty injury, but that sick leave and annual leave must be reported as earned income.

15.  A member of the staff of the Board contacted the applicant to obtain copies of his pay vouchers.  The applicant informed the staff member that he no longer had copies for the year in question.

16.  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 or takes paid sick/annual/vacation leave, 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.

CONCLUSIONS:

1.  Incapacitation pay is a short-term vehicle for providing reservists disabled in line of duty income while they recuperate or are medically boarded.  The intent of the law is clear that regular pay, annual leave and sick leave received will be counted against a claim.  The Board’s understanding is the law is not referring to advanced sick leave.  If however, the law included advanced sick leave in the applicant’s case, it would appear to create an inequity by forcing the applicant to take advanced sick leave so as not to interrupt his income.  The applicant made a strong argument that it would have been unfair to force him into a no pay situation and then force him to seek reimbursement.  If the applicant had allowed his income to stop he would not have been able to meet his financial obligations such as child support payments or mortgage nor make a claim for any associated late fees or penalties.  

2.  Receiving advanced sick leave is similar to borrowing money against future income. If for any reason the applicant had been terminated with an advanced sick leave balance he would have received a bill for the outstanding advanced sick leave or it would have been collected from any monies due him.  The Board is also cognizant that the applicant was not properly counseled by his commander on the rules for incapacitation pay and he was advised that if he repaid the sick leave he would be entitled to incapacitation pay.  Just as only in the most meritorious cases allow incapacitation pay to be extended past the 6-month limitation, the same meritorious standard has been met by the applicant.  Therefore, he is entitled to receive incapacitation pay equal to the 161 hours of advanced sick leave he was forced to take.

3.  In view of the circumstances surrounding this case, the Board believes that to grant the applicant’s request would be giving a reasonable benefit of doubt to a reservist who had an indisputable line of duty injury which resulted in a period of physical unfitness.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing:

a.  showing that the individual concerned was authorized incapacitation pay for his civilian employment for the period of 16 September 1998 – 13 October 1998 at the rate of $15.88 for 161 hours; and 

b.  paying to him any lost US Army Reserve wages that occurred during the period 6 August 1998 - 19 October 1998.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__wtm___  ___mes_  ___jea___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_________Walter T. Morrison____
		        CHAIRPERSON

INDEX

CASE ID	AR2000039257	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001116	
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.