MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           22 August 2002                  
	DOCKET NUMBER:   AR2002075093

	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. Raymond V. O'Connor, Jr.		Member	
	Ms. Barbara J. Lutz		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 incapacitation pay for the period 17 July 1997 through 3 March 1998.

APPLICANT STATES:  He was unable to perform his military duties due to cervical strain he incurred during annual training in 1997.

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

On 16 May 1997 the applicant, a specialist in the Army National Guard (ARNG) performing 15 days of annual training, woke up with pain in his neck and upper back.  He was transported to the aid station and was then sent to a military hospital.

In an undated consultation at a civilian hospital, the applicant reported awaking with pain in the lower portion of his neck and upper back.  “He recalled no particular injury, but ‘assumed’ it was due to his activities in training for the national guard or as a mechanic.”

On 18 August 1997, the applicant had a fitness for duty evaluation.  The physician conducting the evaluation stated that “He denied any previous problems [when he was first seen for his pain].”  The physician continued “Review of his chart reveals he was involved in a motor vehicle accident while on active duty in Jul 93 and also a history of treatment of neck pain in Aug 95.  Since that time he has worked as a mechanic and has had persistent pain.”  The physician diagnosed the applicant as having a mild degenerative change in his C5 disc, and a small left posterolateral disk protrusion at his C5-6 discs.

On 17 November 1997, the applicant was informed that his cervical disc herniation existed prior to training, therefore it was not considered to have been incurred in line of duty.  However, his cervical strain was considered in line of duty.

On 4 December 1997, the applicant rebutted that finding.  In that rebuttal he chronicles his medical treatment, and the administrative problems he encountered obtaining that treatment.

On 20 August 1998, the applicant’s commander was notified that since only the applicant’s cervical strain was approved as being incurred in line of duty, he could only be awarded incapacitation pay for the period he was unable to 

perform duties due to that condition.  Since the applicant’s civilian physician stated that his condition was essentially resolved on 17 July 1997, he could not be paid incapacitation pay after that date.

Army Regulation 600-8-1, paragraph 41-8 states, in pertinent part, that if an Existing Prior to Service (EPTS) condition was aggravated by military service, the finding will be in line of duty.  If an EPTS condition is not aggravated by military service, the finding will be not in line of duty.  Specific findings of natural progress of the pre-existing injury or disease based on well established medical principles alone are enough to overcome the presumption of service aggravation.

Army Regulation 135-381 and title 37, U.S. Code, section 204, provides for continuation of pay and allowances under certain circumstances to reservists and guardsman who are disabled in line of duty.  To receive continuation of pay, referred to as incapacitation pay, reservists and guardsmen must either be unable to perform their normal military duties or be able to show a loss of nonmilitary income due to a line of duty injury or disease.  Incapacitation payments are made by the servicing Army finance and accounting office.

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.  It is documented that the applicant had a history of neck pain dating back to August 1995.  In addition, the applicant did not experience any injury while on annual training which could have caused degenerative disc disease.  Therefore, the Board is satisfied that the finding that his degenerative disc disease was not incurred in line of duty was appropriate.

2.  Since the applicant’s degenerative disc disease was not incurred in line of duty, it was appropriate to terminate his incapacitation pay when the pain of the cervical strain subsided.  His subsequent pain was due to his herniated disc, and did not qualify for incapacitation pay.

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

________  ________  ________  DENY APPLICATION

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

INDEX

CASE ID	AR2002075093	
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	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.	128.00	
2.		
3.		
4.		
5.		
6.