MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:             21 December 2000                 
	DOCKET NUMBER:    AR2000041164

	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. Walter Avery		Analyst	

  The following members, a quorum, were present:

	Ms. Karol A. Kennedy		Chairperson	
	Ms. Gail J. Wire		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 beyond six months and if approved that he receive back pay.

APPLICANT STATES: That since his disability occurred while he was performing active duty, his incapacitation pay should have been continued beyond six months.  His pay was cut off in February 1999 even though he remained on orders, continued to see doctors and went through medical evaluation boards.  He states that he is owed seven months of back pay and that he has lost everything having sold all of his personal property to survive.  Further, he disagrees with the Medical Evaluation Board’s (MEB) decision that he had an existed prior to service injury.

In support of his application he submits a letter (the letter is not on letterhead nor does it contain a signature block) from a doctor stating that the applicant’s myotonia congenita is service aggravated.  He also submits a letter from a noncommissioned officer that gives the applicant’s military job description and states that the applicant worked in the unit from 8 January 1996 to 1 August 1998.

EVIDENCE OF RECORD: Information herein was provided by the applicant, who at the time of submitting an application was serving as a specialist/E-4 in the Florida Army National Guard.

On 15 January 1998 a line of duty (LOD) was conducted.  The investigating officer stated that on 7 January 1998 while the applicant was placing target coffins in positions on a range he developed lower back pain.  He went home thinking it would pass, however the next day he awoke to find his movement was limited and he sought medical treatment.

On 7 April 1999 a formal line of duty (LOD) was conducted.  The investigating officer concluded that the applicant’s injury was in line of duty.  On 21 June 1999 the National Guard Bureau (NGB) approved the formal line of duty for: In line of duty for the low back pain; Not in line of duty-Not due to own misconduct –Existed Prior To Service-No aggravation for the right upper extremity radiculopathy.

On 24 May 1999 the applicant submitted a sworn statement as part of another LOD.  The applicant stated that while constructing target coffins into positions on a range he developed lower back pain, upset stomach, and when laying on his back his right arm goes to sleep and becomes numb.  On 7 December 1997 he sought medical treatment and was given 72 hours of bed rest.  The LOD on 15 January 1998 indicates the applicant’s injury occurred on 7 January 1998.  However, the applicant states the injury took place on 6 December 1997.  Medical records reflect that the applicant was treated on 7 December 1997, thereby supporting the date used by the applicant.

On 27 May 1999 a MEB convened and determined the following: Diagnosis 1.  Myotonia Congenita; Origin: existed prior to entry; Diagnosis 2.  History of right C-7 radiculopathy, right; Origin: Did not exist prior to entry.  The MEB remarked that the applicant had noted the onset of neck pain with some radiation to his right arm approximately December 1997, associated with lifting a heavy object on the job.  He had a history of low back pain with bilateral sciatic symptoms that was entirely resolved and controlled with daily stretching exercises.

On 13 July 1999 the office of the Adjutant General of the Florida National Guard requested that the NGB reconsider its denial of the applicant’s request for the extension of incapacitation pay.  It was noted that in accordance with Department of Defense Directive 1124.1, the applicant was entitled to continuous medical treatment, disability processing and incapacitation pay entitlements until either he was returned to duty or out-processed through the disability evaluation system.

On 16 July 1999 the Florida Army National Guard, Staff Judge Advocate, prepared a legal review of the applicant’s request for reconsideration for continuation of incapacitation pay.  It stated that the decision to deny an extension of incapacitation pay beyond six months for the applicant was not legally supportable and should be reversed; that soldiers are entitled to receive incapacitation pay until they are returned to duty.

On 19 November 1999 a PEB convened and determined that the applicant was physically unfit due to myotonia congenita and found that there was compelling evidence to support a finding that the current condition existed prior to service.  His other condition (radiculopathy) was found not unfitting and was not rated.  The PEB recommended no rating and that the applicant be separated from the service without disability benefits.  The applicant did not concur and requested a formal hearing.

On 14 December 1999 the applicant appealed the PEB findings.  He states that the formal line of duty had found that the lower back and upper neck radiculopathy were caused in line of duty and that his medical records supported a back injury. The myotonia congenita is not even a related injury or a factor in this matter.  The PEB responded to the applicant’s appeal.  The PEB pointed out that the applicant was incorrect in his assertion that the LOD substantiated his lower back and neck injuries.  The LOD only referred to the applicant’s lower back injury and did not include any neck problems.  The MEB narrative summary with which the applicant agreed on 7 June 1999 indicated that the lower back pain had been entirely resolved and is controlled with daily stretching.

On 17 Dec 1999 the Office of the Deputy Chief of Staff for Personnel concurred with the NGB’s decision to deny extension of incapacitation pay beyond the statutory time limit, based upon the judgement that the soldier had been justly compensated.  The writing official noted that the MEB report indicated that the applicant had preexisting low back problems.  The MEB report established the onset of neck pain radiation to the right arm approximately December 1997, associated with lifting a heavy object on the job.  Additionally, the report references a history of low back pain with bilateral sciatic symptoms.  For the reasons cited, he wrote, approving the extension of incapacitation pay was not in the interest of “fairness and equity” which is a requirement of the law.

On 6 January 2000 a formal PEB convened and determined that the applicant was physically fit for duty and should be returned to duty.  The applicant concurred.

In the processing of this case, an advisory opinion was obtained from the NGB. The opinion recommends denial of the applicant’s request to this Board.  The NGB noted it had previously denied the same request for extension of incapacitation pay because the applicant’s disability appeared to be a service aggravation of an existing prior to service medical condition.  The existing prior to service finding was based on the review of the applicant’s medical records conducted in conjunction with his MEB.  The applicant responded to the advisory opinion by restating his case, submitting his supporting documents and reemphasizing the unfairness of the Army’s treatment towards him.

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 six-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.
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 basis for the applicant’s request for incapacitation pay is the complaint of lower back pain.  It is not clear from the information available to the Board that the lower back complaint resulted in the applicant becoming incapacitated.  The MEB did not find a diagnosis for lower back pain.  The MEB commented that the applicant had a history of low back pain that was then entirely resolved and controlled with daily stretching exercises.  At best the applicant may have aggravated a pre-existing low back problem.  Despite the pre-existing nature of his condition at the time, he was given six months pay and allowances.  The Board considers this six 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 six-month limit on incapacitation pay.

2.  Incapacitation pay is a short-term vehicle for providing reservists disabled in line of duty income while they recuperate or are medically boarded.  It is not meant to take the place of possible long-term disability payment.  This is amply demonstrated by the six-month limitation on award of that pay.  As such, the termination of the applicant’s incapacitation pay was proper.

3.  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

____kka ____  ___gjw _  __ewl _  DENY APPLICATION

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

INDEX

CASE ID	AR2000041164	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001221	
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.	108.05	
2.		
3.		
4.		
5.		
6.