MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            13 June 2000                  
	DOCKET NUMBER:    AR1999030131

	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. Elizabeth Buchannon		Chairperson	
	Mr. John H. Kern		Member	
	Ms. Barbara J. Ellis		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 she be given incapacitation pay for the periods she was unable to work her civilian job; that her medical expenses incurred to treat her line of duty disability be paid by the Army; that her records be amended to reflect that all of her absences from duty were the result of her line of duty disability; that her records be corrected to show that she was separated from her unit due to her line of duty disability; and that the attempts to recoup her enlistment bonus be terminated.

APPLICANT STATES:  That she did not receive compensation or entitlements for periods that she was incapacitated for a line of duty injury.  She chronicles the medical treatment she was given for pain in her feet while serving on her Initial Active Duty for Training (IADT).  She continues that despite the pain in her feet she successfully completed her training.  In November 1990 her unit was mobilized in support of Operation Desert Shield.  While awaiting deployment she again experienced pain in her feet which resulted in her release from active duty without being deployed.  

After her release from active duty she saw her civilian physician who referred her to a podiatrist.  She was treated by the podiatrist once in May, once in June and once in August 1991.  She was then examined by a military physician who determined that she was still having problems with her feet.  As a result of that examination she was told that she did not have to attend drills with her unit.  After several years the problems with her feet improved.  

In October 1996 she reenlisted in the ARNG and started attending drill.  But once again, her feet would hurt and swell when she wore her combat boots.  When she took off her boots the pain and swelling would subside after a couple of days.  During annual training in 1998 she was required to wear her boots constantly.  She was examined by a military physician who diagnosed her as having plantar fasciitis.  That physician also initiated a line of duty investigation on her condition.  The investigation determined that her bilateral foot condition was incurred in line of duty and then she was determined physically unfit to perform her duties.

In support of her application she submits letters from her employer which show she took 112 hours of sick leave from 6 July 1998 to 24 July 1998 (the letter is dated 2 August 1999.  It would appear the later date was a typographical error and should have been 24 July 1999).  She also submits a physician’s statement which certifies she was under his care from 8 to 27 July 1998.  She also submits a letter from the Defense Finance and Accounting Office which confirms that a collection action in the amount of $527.78 is being taken against her because of the termination of her bonus upon her transfer to the Inactive National Guard (ING).  She also provides the Board with a copy of her civilian medical bills.

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

She enlisted in the ARNG with no prior service on 8 August 1989.  She entered IADT in February 1990.  She successfully completed IADT, was awarded a military occupational specialty, and was released from IADT in May 1990.

In November 1990 she was mobilized with her ARNG in support of Operation Desert Shield.  On 22 January 1991 she was released from active duty and returned to her status as a drilling Guardsman due to medical unfitness.

She was transferred from her ARNG unit to the ING on 23 January 1991 due to her medical condition.

She served the remainder of her enlistment in the ING and was honorably discharged at the expiration of her term of service on 7 August 1996.

On 25 October 1996 she reenlisted as prior service in the ARNG with assignment to a troop program unit.

On 25 August 1998 a formal LOD investigation was conducted on the applicant’s plantar fasciitis.  The approved recommendation of the investigating officer was that her condition existed prior to service (EPTS), but the aggravation of the EPTS condition during annual training in 1998 was in line of duty.

On 13 November 1998 a Medical Evaluation Board (MEB) convened and determined that the applicant was medically disqualified due to severe bilateral plantar fasciitis and referred her to a PEB.

On 21 January 1999 a PEB convened and determined that the applicant was physically unfit due to a service aggravated EPTS condition.  The PEB recommended that the applicant be discharged with severance pay, rated 20 percent disabled.

Army Regulation 635-40 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board.  Those members who do not meet medical retention standards will be referred to a physical evaluation board for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.  For example, a noncommissioned officer who receives above average evaluation reports and passes Army Physical Fitness Tests (which have been modified to comply with the individual’s physical profile limitations) after the individual was diagnosed as having the medical disqualification would probably be found to be fit for duty.  The fact that the individual has a medically disqualifying condition does not mandate the person’s separation from the service.  Fitness for duty, within the perimeters of the individual’s grade and military specialty, is the determining factor in regards to separation.  If the PEB determines that an individual is physically unfit, it recommends the percentage of disability to be awarded which, in turn, determines whether an individual will be discharged with severance pay or retired.  Paragraph 4-19b states that a PEB may decide that a soldier’s physical defect was EPTS, but must then determine whether the condition was aggravated by military service.  If the PEB determines that a soldier has an unfitting EPTS condition which was service aggravated, the PEB must determine the degree of disability that is in excess of the degree existing at the time of entrance into the service.  The method of determining the percentage of disability to be awarded in such cases is outlined in appendix B, item B-10 of this regulation.  

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 or takes paid sick/annual/vacation leave, 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.  Incapacitation payments are made by the servicing Army finance and accounting office.

Army Regulation 135-381 also provides for follow-up medical care for reservists who incur service connected injuries.  While this regulation provides for emergency medical care to be provided by the nearest medical treatment facility, including civilian facilities, subsequent civilian medical care is specifically prohibited without prior approval by the Medical Department Activity (MEDDAC) with geographical responsibility for the reservist.  

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 used her sick leave on her civilian job she did not have any lost income.  As such, she is not entitled to incapacitation pay.  Reservists and Guardsmen are prohibited from receiving incapacitation pay while using sick or annual leave to preclude them from enriching themselves as a result of a service related disability (dual compensation for the same period).

2.  There is no evidence or indication that the applicant requested that her unit schedule her for follow-up medical care when she went to her civilian physician.  As such, her civilian medical bills cannot be paid by the Army under existing Army regulations.  The Army and the Department of Veterans Affairs have sufficient physicians to provide reservists virtually all required medical care.  Therefore, the Army does not pay for civilian medical care that was obtained without prior approval by the MEDDAC.

3.  As for the recoupment of the applicant’s bonus, generally an EPTS medical condition is not grounds for special disability considerations.  In addition, there is no indication that the applicant was medically unable to attend any drills for the five and a half years she did not participate in her unit.  She could have performed her duties with physical profile restrictions, such as the wear of tennis shoes.  As such, the recoupment of her bonus appears to have been appropriate.  The Army promised to pay her a bonus in return for her active participation in her unit.  When she transferred from her unit to the ING, the bonus contract was terminated and prorated.

4.  The same logic would apply to the applicant’s request to have the coding of her absences from her unit changed to disability.  There is no evidence that she was in fact disabled during that time.

5,  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

___eb___  ___jhk    _  ___be_____  DENY APPLICATION

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

INDEX

CASE ID	AR1999030131	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
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.	108.05	
2.	128.14	
3.		
4.		
5.		
6.