MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           8 February 2001                 
	DOCKET NUMBER:   AR2000043132

	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. JoAnn H. Langston		Chairperson	
	Mr. Donald P. Hupman		Member	
	Mr. George D. Paxson		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 he be given 12 days of incapacitation pay.

APPLICANT STATES:  His request for incapacitation pay was erroneously disapproved due to administrative errors.

EVIDENCE OF RECORD:  The applicant's military records were not provided to the Board.  The following information was derived from documentation provided by the applicant.

While performing inactive duty (weekend drill) with his Reserve unit on 17 September 1994, the applicant, an enlisted soldier in pay grade E-4, was a passenger in a civilian vehicle which ran into the rear of another automobile on the highway.  The driver of the vehicle in which the applicant was a passenger was arrested for speeding and (apparently) unlawful use of the vehicle.

The applicant received outpatient treatment for the injuries he sustained in the accident.  On 22 September 1994 the applicant was given a physical profile which limited his lifting to 5 pounds or less until his follow-up appointment on 26 September 1994.  On 17 October 1994 he was given another physical profile limiting his lifting to less than 30 pounds and precluding him from running, marching and physical training tests.

On 14 October 1994 a military medical treatment facility completed a form indicating that the applicant was unfit to perform his military duties from 14 to 24 October 1994.  However, this statement also indicated that the applicant was fit to perform his duties associated with his civilian job.

On 4 December 1995 the applicant was notified that his “Not in Line of Duty – Due to Own Misconduct” determination on the injuries he incurred as a result of the automobile accident of 17 September 1994 had been reversed to “In Line of Duty.”  The stated reason for reversal of the not in line of duty finding was that it was based on the fact that he tested positive for cocaine the day following the accident.  However, a legal ruling determined that the positive urinalysis did not establish that he was under the influence of cocaine at the time of the accident.

In an incapacitation pay claim form dated June 1996 the applicant claimed pay for September through October 1994, and for 2 February 1995 through June 1996.  In that form he stated that he was fired from his civilian job on 2 February 1995.

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.

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.  Since the applicant was never medically certified as being unable to perform his civilian job, he would only be entitled to incapacitation pay for the period he was determined unfit to perform his military duties - 14 to 24 October 1994.

2.  However, the applicant has not shown that he has not been paid for that period.  Without that documentation, the Board cannot grant his request.

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

___jhl___  ___dph___  ____gd[_  DENY APPLICATION

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

INDEX

CASE ID	AR2000036035	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010208	
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.