MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            19 December 2000 
	DOCKET NUMBER:   AR2000042639

	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	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. James P. Huber		Chairperson	
	Mr. Kenneth L. Wright		Member	
	Mr. Raymond J. Wagner		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 the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	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 active duty service be corrected to reflect the period of time he was recovering from an injury he sustained in the line of duty on 20 June 1989.  

The applicant states he was “not kept on active duty for the time period [he] was injured.”  He notes that he was informed that he “was suppose to be kept in an active duty status until [he] recovered from the injury” and that he was supposed to be “paid as an active duty member.”  He states that instead he “was forced out medically for not being able to perform his duties.”  The applicant states that he “should get credit for time on active duty because presently” he is receiving disability compensation from the VA and if his records were corrected his children would be eligible for education benefits from the VA.  The applicant submits no evidence in support of his request.

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

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

On 20 June 1989 the applicant, a member of the 257th Transportation Company on annual training, sustained a strained tendon in his left foot during physical training.  The injury was determined to have occurred in the line of duty.  There is no indication the applicant was receiving incapacitation pay but a 6 March 1990 memorandum of record notes that as of March 1990 the applicant’s “incapacitation packet” was being returned for deficiencies which the applicant “must obtain to resubmit.”

On 31 July 1990 the applicant was transferred from the 257th Transportation Company to the U.S. Army Reserve (USAR) Control Group (Reinforcement) as a result of unsatisfactory participation.

On 8 February 1991 the applicant was ordered to active duty as a mobilization asset for the Total Army Personnel Command in support of Operation Desert Storm.  He was released from active duty 19 days later, on 26 February 1991 when it was determined that his “present physical profile” failed to “meet the minimum physical profile standards for assignment as an 88M, Military Transport Operator.”  The applicant was returned to the USAR Control Group.

On 20 July 1993 he was honorably discharged from the USAR Control Group.

Section 204, title 37, United States code provides authority for continuation of pay and allowances under certain circumstances to soldiers who are disabled in the line of duty from injury, illness, or disease incurred or aggravated while in a duty or travel status.  Prerequisites for entitlement to incapacitation pay are inability to perform normal military duties or satisfactory demonstration of loss of nonmilitary earned income.  A soldier disabled on or after 30 September 1988 who is determined unable to perform normal military duties may receive full military pay and allowances.  However, if a soldier in this category continues to receive income from non-military sources, this income will be deducted from the incapacitation pay entitlement.  If a soldier can perform normal military duties, but loses nonmilitary income for an injury, illness, or disease incurred or aggravated on or after 30 September 1988, the soldier is entitled upon request, to a portion of pay and allowances.  It would be an amount equal to lost civilian earned income or full pay and allowances, whichever is less.  Incapacitation pay may be paid for up to a maximum of 6 months.  Only the most meritorious requests will be approved for payment beyond the 6 months limits and then only with the approval of the Secretary of the Army.  The period of time in which a soldier receives incapacitation pay is not creditable service for “active” duty purposes.  There is no evidence, and the applicant has not provided any, which establishes that he was entitled to incapacitation pay following his June 1989 injury.

Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered in June 1989, when the applicant sustained his injury.  The time for the applicant to file a request for correction of any error or injustice expired in June 1992.

The application is dated 17 April 2000 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__jph___  ___klw__  ___rjw__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000042639	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001219	
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.	142.00	
2.		
3.		
4.		
5.		
6.