MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           12 October 2000                   
	DOCKET NUMBER:   AR2000045399

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. John D. Miller		Chairperson	
	Ms. Carol Jo Suiter		Member	
	Mr. John E. Denning		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 Certificate of Release or Discharge from Active Duty, DD Form 214, be changed to show his date of separation as          11 August 1997.

APPLICANT STATES:  That he continued on active duty from 5 February 1995 through 11 August 1997 due to injuries incurred while on active duty.  He continued to receive active duty pay and benefits during this period until he was placed on the Temporary Disability Retired List (TDRL) on 12 August 1997.  He provides his DD Form 214, a statement of certification of active duty orders dated 15 February 1995, a Statement of Medical Examination and Duty Status form, a Report of Investigation form, 18 copies of leave and earnings statements (LESs) showing he received incapacitation pay, and his TDRL orders as supporting evidence.

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

He was commissioned in the U. S. Army Reserve on 1 August 1989.

Orders T-06-421971, U. S. Army Reserve Personnel Center dated 29 June 1994 ordered the applicant to active duty for training to attend Officer Basic Course (OBC) with a report date of 1 August 1994 for 185 days (scheduled to end          4 February 1995).

The applicant completed OBC and began return travel home by privately owned vehicle on 2 February 1995.  He was authorized 4 days travel time.  On               3 February 1995, while getting gas, he was shot in the face by the gas station attendant.  The injury was determined to have been incurred in the line of duty.

The applicant’s DD Form 214 shows he was released from active duty on           4 February 1995.

The available LESs show that the applicant drew incapacitation pay from            5 February 1995 through 11 August 1997.  On 12 August 1997, he was placed on the TDRL.

Army Regulation 135-381 establishes procedures and policies and implements statutory authorities regarding medical, dental, hospitalization, and disability benefits, incapacitation compensation, and death benefits.  Chapter 4 states that section 204, Title 37, U. S. 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.  For the purposes of this regulation such continuation of pay and allowances is referred to as “incapacitation pay.”  Prerequisites for entitlement to incapacitation pay are inability to perform normal military duties or satisfactory demonstration of loss of nonmilitary earned income. On release from active duty or termination of inactive duty training, a soldier may qualify for this entitlement.  Soldiers are entitled to a portion of the same monthly pay and allowances as is provided members of the Active Army with corresponding grade, length of service, marital status, and number of dependents for each period the soldier is unable to perform normal military duties or can demonstrate loss of compensation from nonmilitary income.  Soldiers will not be issued active duty orders in place of incapacitation pay as a means of providing benefits to which they might otherwise not be entitled.  Entitlement to incapacitation pay does not place the member on active duty.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The Board concludes that no error or injustice occurred in this case. 

2.  The applicant was injured in the line of duty while in a travel status upon the completion of his active duty for training which was due to end on 4 February 1995.  He was entitled to and drew incapacitation pay from 5 February 1995 through 11 August 1997.  Although he was entitled to a portion of the same monthly pay and allowances as is provided members of the Active Army in corresponding circumstances, by regulation entitlement to incapacitation pay did not place him on active duty.

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

__jdm___  __cjs___  __jed___  DENY APPLICATION

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

INDEX

CASE ID	AR2000045399	
SUFFIX		
RECON		
DATE BOARDED	20001012	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	128.00	
2.		
3.		
4.		
5.		
6.