IN THE CASE OF: BOARD DATE: 13 January 2011 DOCKET NUMBER: AR20100021637 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests credit of 20 qualifying retirement points toward nonregular retirement during the retirement year ending (RYE) 6 April 2003. 2. The applicant states that during the period 7 April 2002 through 6 April 2003 she was receiving incapacitation pay and believed she was also receiving retirement points during this period. She was not properly counseled by her unit career counselor that she was required to enroll in correspondence courses to earn retirement points in order to maintain satisfactory participation. Granting her 20 more points would, in effect, make the 2003 RYE a "good" year. Had she been properly counseled of her responsibilities during this period, she would have done so and attained the 20 retirement points needed to make the year a "good" year. 3. The applicant provides: * DA Form 199 (Physical Evaluation Board (PEB) Proceedings) * U.S. Army Reserve Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement Points) * DA Form 4187 (Personnel Action) request for an exception to policy * DA Form 2173 (Statement of Medical Examination and Duty Status) * U.S. Army Reserve Command (USARC) Form 46-R (Incapacitation Pay Monthly Claim Form) for the contested period * various allied medical documents * statement from her senior career counselor * orders to active duty for training for school (ADTS) CONSIDERATION OF EVIDENCE: 1. The applicant's records show she enlisted in the U.S. Army Reserve (USAR) on 7 April 1989, thus establishing her RYE as 6 April of each year. She subsequently enlisted in the Regular Army on 2 January 1991 and held military occupational specialty 88K (Watercraft Operator). She was honorably released from active duty on 1 April 1995 and she was transferred to the USAR Control Group to complete her remaining service obligation. 2. She reenlisted in the USAR on 6 April 1997 and subsequently served through multiple reenlistments or extensions and held the rank/grade of sergeant first class/E-7 during the contested RYE. She was promoted to master sergeant/E-8 in October 2006. 3. On 24 January 2002, she entered ADTS to attend the Advanced Noncommissioned Officer Course at Fort Eustis, VA. On 9 April 2002, she experienced severe chest pain and was rushed to the emergency room where she remained in an intensive care unit for a week. She was diagnosed with recurrent pericarditis and pleural effusions likely secondary to a vascular disease. Her illness was determined to be in the line of duty. 4. Subsequent to her release from ADTS on 16 April 2002 and return to her assignment with the 7th Battalion (Transportation), 80th Regiment, Fort Eustis, VA, she submitted several monthly claims for incapacitation pay with allied documents (military physician's statement of Soldier's incapacitation and Soldier's acknowledgement of incapacitation pay counseling) covering the period April 2002 through May 2003. In each month her commander and her military physician certified she was: * not fit to perform military duties * not fit to perform civilian job 5. Her ARPC Form 249-E, dated 30 November 2010, shows that during the RYE 6 April 2003 she earned 15 points for membership and 15 active duty points for a total of 30 points creditable toward nonregular retirement. 6. Subsequent to this RYE, she resumed her inactive duty training, annual training, and attendance at active duty for training and received appropriate retirement points. 7. She entered active duty in support of Operation Enduring Freedom on 4 September 2004 and she was honorably released from active duty on 30 September 2008 after she completed her required active service. 8. On 29 October 2008, she again entered active duty for Reserve Components Medical Retention Processing. She underwent various medical examinations and her records were considered by a medical evaluation board that referred her to a PEB. 9. On 19 October 2010, an informal PEB convened in Washington, DC, and found her condition prevented her from performing the duties required of her grade and specialty and determined she was physically unfit due to various medical conditions. She was rated under the Department of Veterans Affairs Schedule for Rating Disabilities and was granted a 90-percent disability rating. The PEB recommended permanently retiring her by reason of disability. She concurred with the PEB's finding and recommendation. She is tentatively scheduled for retirement on or about 27 January 2011. 10. Her ARPC Form 249-E, dated 30 November 2010, shows she completed 19 years and 1 day of qualifying service for nonregular retirement as of 6 April 2010. None of her retirement points was earned through correspondence courses. 11. She submitted a statement, dated 13 September 2010, from her former senior career counselor, now retired, wherein he states he served as the applicant's senior career counselor during the period she received incapacitation pay and that he did not counsel her on this program or brief her on the ability to receive military credit through correspondence courses. 12. Army Regulation 135-381 (Incapacitation of Reserve Component Soldiers) prescribes policies and implements statutory authorities regarding incapacitation pay and allowance and reviews requirements on these entitlements for Reserve Component Soldiers. Incapacitation pay will be paid only during the period the member remains unfit for military duty or demonstrates a loss of earned income as a result of the incapacitation. Payment in any particular case may not be made for more than 6 months without review of the case by appropriate headquarters. To ensure that continuation of incapacitation pay is warranted under this regulation, a review will be made every 6 months. Incapacitation pay will continue as long as the conditions warranting the incapacitation pay exist and the approving authority determines that it is in the best interest of fairness and equity to continue the payment. 13. Paragraph 1-6 of Army Regulation 135-381 states that members authorized incapacitation pay under Title 37, U.S. Code, section 204(g), will not be allowed to attend inactive duty training periods or to acquire retirement points for training assemblies. However, a member may earn retirement points in order to satisfy the requirements for a qualifying year of service by completing correspondence courses. 14. There are two tiers associated with incapacitation pay: a. Tier I refers to claims by Soldiers who are unfit to perform their military duties as a result of an injury, illness, or disease caused by military service. A determination of fitness for duty must be made by a military medical physician. Eligible Soldiers are paid full military pay and allowances, less any civilian earned income received during the month of the claim, and are not eligible to draw retirement points. b. Tier II refers to claims by Soldiers who are determined fit to perform their military duties by a military medical physician, but who are unable to perform their civilian jobs and can demonstrate a loss of civilian earned income. Eligible Solders will be reimbursed for lost civilian earned income up to full military pay and allowances and are eligible to draw retirement points. 15. Department of Defense Instruction 1241.2, paragraph 6.2.1.1.2, states that Soldiers authorized incapacitation pay "will not be allowed to attend inactive duty training periods or to acquire retirement points for drills." This applies to members unable to perform military duty (Tier 1 cases). DISCUSSION AND CONCLUSIONS: 1. The evidence of record shows the applicant suffered a medical condition in April 2002 that led to her receipt of incapacitation pay from April 2002 through May 2003. Her command and her military physician certified she was not fit to perform military duties as well as her civilian duties. Being unable to perform military duties placed her in Tier I, which would have prevented her from receiving retirement points for drills during the contested period. 2. There is no evidence the applicant completed any correspondence courses during the contested period. The applicant was a senior noncommissioned officer at the time of her illness and had been in the USAR for over 12 years. She knew or should have known most, if not all, sources of earning retirement points. The fact that her career counselor failed to counsel her does not negate the fact that she failed to not only manage her own career, but to provide professional development to her Soldiers. 3. Additionally, her ARPC Form 249-E shows she never earned any points through correspondence courses throughout her entire career. It is therefore reasonable to presume she would not have completed any correspondence courses even if she had been properly counseled. 4. In view of the foregoing evidence, she is not entitled to the requested relief. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ____X____ ____X____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _____________X____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20100021637 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100021637 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1