RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 October 2005 DOCKET NUMBER: AR20050000899 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. Edmund P. Mercanti Analyst The following members, a quorum, were present: Mr. James E. Anderholm Chairperson Mr. Jose A. Martinez Member Ms. LaVerne M. Douglas Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests that he be given incapacitation pay for the period 18 April to 17 May 1985. 2. The applicant states that the pain from his back and the side effects of the narcotic medication he was given for the pain adversely affected his ability to concentrate and focus and to do even simple tasks. He needed to lie down several hours a day and was unable to complete a normal workday on a regular basis, military or otherwise. 3. The applicant provides: a. a letter dated 15 September 1986 which denies the applicant’s request for incapacitation pay. In that letter it was stated that there was no evidence that the applicant was determined unfit by military medical authority to perform his normal military duties; b. various documents pertaining to the applicant’s attempts to get his civilian medical bills paid and to be paid incapacitation pay; c. medical records, to include an admission record which stated that the applicant was hospitalized on 21 April 1985 with a severely acute damaged disc syndrome. The physician stated that “I felt that the problem was brought on by a lot of riding in a jeep the week before while on maneuvers with the National Guard. I think there was an aggravation of his pre-existing generalized lumbar disc problem”; d. a medical progress note which stated that the applicant, a lieutenant colonel serving as the legal officer of a US Army Reserve (USAR) Civil Affairs Company, reported riding in a jeep during weekend drill with his unit. He reported doing his normal routine on Monday and Tuesday, with his back starting to hurt Wednesday night; and e. a DA Form 2173, Statement of Medical Examination and Duty Status, which shows that the applicant was on inactive duty training (weekend drill) on 13 and 14 April 1985, and was admitted to the hospital for back pain on 21 April 1985. The applicant’s back pain was approved as in line of duty. CONSIDERATION OF EVIDENCE: 1. The applicant is requesting correction of an alleged injustice which occurred on 15 September 1986, the date his incapacitation pay request was denied. The application submitted in this case is dated 8 January 2005. 2. 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. This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file. 3. 32 USC, Section 318, governed entitlement for incapacitation pay for disabilities incurred before 15 November 1986. It provided that if a disability incurred while performing duty continued beyond the termination of orders, and the member was unfit to perform normal military duty per medical authority, the member is entitled to active duty pay and allowances and medical benefits commensurate with the Regular forces. The entitlement was not affected by resumption of normal civilian occupation. The law did not include language concerning termination of such pay. DISCUSSION AND CONCLUSIONS: 1. While the applicant has submitted documents showing that he received medical treatment for his back pain, he has not submitted any documents showing that he was unable to perform his normal military duties. As such, he was properly denied incapacitation pay. 2. In addition, the law which provided for incapacitation pay at the time the applicant experienced back pain stated that this pay was authorized for disabilities which were incurred on a duty status and continued beyond the termination of that military duty. The applicant has never stated that he was disabled on weekend drill. He simply attributes his back pain to riding in a jeep while on weekend drill even though he didn’t experience back pain for several days after the weekend drill had ended. 3. To summarize, the applicant is requesting incapacitation pay for an existing prior to service (EPTS) condition which started to be painful several days after the weekend drill, a time when the applicant had no military status. 4. Records show the applicant should have discovered the alleged error or injustice now under consideration on 15 September 1986; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 14 September 1989. However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____lmd__ ___jea__ ___jam__ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 2. As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law. Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned. _________James E. Anderholm_______ CHAIRPERSON INDEX CASE ID AR20050000899 SUFFIX RECON YYYYMMDD DATE BOARDED 20051025 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. 2. 3. 4. 5. 6.