MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            10 JUNE 2003                  
	DOCKET NUMBER:   AR2002082762

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Ms. Shirley L. Powell		Member	
	Mr. John T. Meixell		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:  In effect, the applicant requests that his records be corrected to show that he was in an active duty status from 18 August 1995, the date that he injured his shoulder, until 6 April 2001, the date of his discharge from the Army Reserve because of his physical disability, and that he be awarded retroactive pay and allowances for that period.  He also requests that his record be corrected to show that he was promoted to sergeant, and that he be awarded the medals to which he would have been entitled.    

APPLICANT STATES:  That his unit administrators (UA) did not perform their duties by submitting the proper documents in a timely manner, which resulted in his eventual surgery and his discharge without the approved disability [incapacitation?] pay.  He informed [personnel] of his injury and his pain; nonetheless, [despite his pain] he was an exemplary soldier. 

The applicant submits numerous documents, which are delineated in the evidence of record.

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

Medical reports show that the applicant, then a Reserve soldier on initial active duty for training, injured his left shoulder while at basic training at Fort Jackson, South Carolina on 18 August 1995, suffering a fracture to his clavicle. 

A DA Form 2173 (Statement of Medal Examination and Duty Status) shows that the applicant fell to the ground on his shoulder while participating in relay races, fracturing his clavicle, on 18 August 1995, at Fort Jackson, South Carolina.  He was treated at a health clinic at Fort Jackson.  The attending physician signed the DA Form 2173 on 21 August 1995.  On 17 October 1996 the applicant's unit administrator requested that the commander of the applicant's basic training unit complete his portion of the line of duty that was done on the applicant in August 1995, in order for the applicant to request incapacitation (incap) pay for time lost at his civilian job.  His commanding officer signed his portion of the form on         5 November 1996, determining that his injury was in line of duty, and that a formal investigation was not required.  The line of duty investigation was reviewed by the 81st Regional Support Command on 16 May 1997.  The applicant's injury was determined to be in line of duty.  The report was review for completeness at Fort Jackson on 8 April 1997.  His injury was determined to be in line of duty.

A physical fitness test scorecard shows that the applicant passed the Army Physical Fitness Test (APFT) on 7 December 1996 and again on 18 July 1998.  

On 26 April 1996 orders were published ordering the applicant to initial active duty for training for advanced individual training for approximately 7 weeks with a reporting date to Fort Leonard Wood, Missouri of 27 June 1996. 

The applicant was released from active duty on 4 September 1996 after having undergone training as a heavy construction equipment operator.  He was transferred to his Reserve unit in Miami.

The applicant was advanced to specialist four on 9 January 1998.

Orders show that the applicant was on annual training with his Reserve unit from 21 February 1998 to 7 March 1998 and from 9 April 1999 to 23 April 1999.

On 13 April 1999 the applicant received a certificate of achievement for his hard work during annual training in 1999. 

On 12 February 1999 the applicant completed a USARC Form 46-1-R (Soldier's Acknowledgement of Incapacitation Pay Counseling).

On 12 February 1999 the applicant's employer, Mr. "Mc," owner of a company called "The Tree Man," completed 5 Incapacitation Pay Monthly Claim Forms (USARC Form 46-R) verifying that the applicant, his former employee, was unable to work during the dates shown on those forms - from 24 August 1995 through 31 December 1995.  He completed another 14 forms on 30 September 2000, stating that the applicant was unable to work from 1 July 1999 through    25 August 2000.  Those forms showed the applicant's loss of income because of his inability to work.

On 5 June 1999 a military doctor at the 7217th MSU (Medical Support Unit)         at a VA Medical Center in Miami, completed a USARC Form 46-2-R (Military Physician's Statement of Soldier's Incapacitation/Fitness for Duty) stating that the applicant was not fit to perform military duties from August 1995 to the present time.  He stated that he was fit to perform his civilian job.  The applicant's civilian occupation on that form showed that he was a correctional officer.  The doctor stated that the applicant had a fracture to his left clavicle and left acromo-clavicular joint dislocation, and that he was pending an orthopedic examination and possible surgery.

On 5 June 1999 the applicant received a temporary profile because of his shoulder problems.  On 8 January 2000 he received another temporary profile.

On 16 February 2000 the applicant underwent surgery to his left shoulder.  

On 18 March 2000 the applicant's unit administrator (UA) provided a memorandum concerning the applicant.  He stated that the applicant stated that his injury took place one week before basic training graduation; consequently he was not treated and sent home.  He was claiming incap pay from the period      24 August 1995 through 31 December 1995, and although a senior in high school, worked half a day for his father under a work study program, and claimed that he was paid under the table, meaning that his income was not taxable.  The applicant stated that he did not do anything previously concerning his injury, claiming that the wanted the two previous UA to take care of it.  The UA stated that in February 1999 he gave the applicant the incap pay forms, and scheduled an appointment for him with a military physician on 5 June 1999.  The UA continued discussing the applicant's situation, stating that he did not realize that the doctor had stated that the applicant was not fit for military duties, and that he did not discover that fact until 3 March 2000, at which time he was directed that the applicant was to cease all military duties.  The UA stated that he talked with the applicant [sometime in February 2000] informing him that any orders published, for his treatment, would be temporary duty order at a medical treatment facility.  The applicant stated that he wanted to be placed on convalescent leave.  The UA stated that the applicant said he was not working, and that he was drawing unemployment because he had been fired from his corrections job.  The UA stated that on 7 March 2000 the applicant received a written counseling statement that he was to cease all his military duties and was to report to Fort Stewart, Georgia on 28 March 2000.

On 28 March 2000 a military physician, LTC "S," completed a USARC (Army Reserve Command) Form 46-2-R (Military Physician's Statement of Soldier's Incapacitation/Fitness for Duty), indicating that the applicant was not fit to perform military duties from 5 June 1999 to 28 March 2000, and that a Military Evaluation Board (MEB) was initiated on 28 March 2000.  He also indicated that he was not fit to perform his civilian job (firefighter/paramedic) from 21 August 1995 through 31 December 1995, and from 5 June 1999 through 28 March 2000.
He also stated that the applicant was unfit for his civilian job until 15 May 2000.

A 28 March 2000 medical report noted that the applicant underwent a distal clavicle resection, subacromial decompression at a VA hospital in Miami on      16 February 2000.  The examining physician stated that the applicant was unfit [for service] and needed an MEB.

A 28 April 2000 chronological statement of retirement points shows that the applicant was credited with 32 inactive duty points and 70 active duty points for his retirement year of 24 March 1996 through 23 March 1997; 28 inactive duty points and 30 active duty points for the next retirement year, ending on 23 March 1998; 47 inactive duty points for his retirement year ending on 23 March 1999; and 42 inactive duty points and 22 active duty points for his retirement year ending on 23 March 2000.  Fifteen of those inactive duty points and 7 of those active duty points were earned in the year 2000. 

On 22 June 2000 the applicant corresponded with a captain, informing that officer of his pay problems, and problems with his unit personnel.  He stated that he had gone through surgery and still had not been able to return to work.  He stated that he was evaluated by the VA on 21 June 2000; however, his benefits would not start for four months.  He stated that his unit was supposed to schedule an MEB.  

In an undated letter to a MC, the applicant commented on his injury, stated that he was told by an orthopedic surgeon at Fort Jackson, that he needed surgery to correct the damage; however, because of his mandatory release date, was released to go home.  He went home to finish his senior year in high school, saw an orthopedic doctor, and was told that he could not work for at least four months.  At that time he was working full time while attending half days of school. When he submitted a request for reimbursement of his expenses and for incap pay, an NCO informed he that he had lost the paperwork.  Two years later, his problems were still not solved.  Another UA found his documents and resubmitted them.  However, he still had not received any pay.  He was scheduled for surgery by the VA, but cancelled it when told that the Army would not pay for the surgery; and was also told that he was not entitled to any reimbursements in spite of his favorable line of duty report.  He went to drill to talk with his commander about his problems and was told to apply for VA benefits.  He stated that he was a volunteer fire fighter, and was pending a job offer, but could not do anything until his shoulder was operated on.  He stated that he was married with a 2-year old son, and had exhausted his savings to buy a home.  After his operation on the 16th of February, he would have no income.  Because his injury occurred on active duty, he believed that the Army had a responsibility to correct his disability and to cover expenses and wages.      

In an 8 September 2000 memorandum to the commander of Winn Army Community Hospital, the applicant's commanding officer stated that the applicant was physically capable of reasonably performing his duties as a heavy construction equipment operator despite his shoulder injury that occurred in 1995; however, because of the permanent profile that he received on 28 March 2000, he was no longer qualified to hold his military occupational specialty.  He stated that the applicant never claimed or showed in any way that he was unable to perform his military duties; and that one month after his surgery, he was pleading to go on an advance party to Fort Irwin, California, claiming that he was fully capable of operating his platoon's construction equipment.  He stated that he was never aware that the applicant had any physical limitations until his surgery in February 2000.  He stated that the applicant was not a dedicated soldier.  He stated that despite the amount of time that was put into trying to accommodate the applicant's needs so that he could continue with his duties, it was in the best interest of the unit and the applicant that he be considered unfit for reasonable performance of his duties.

On 20 September 2000 the applicant's commanding officer informed him that he was to commence drilling with his unit, the next drill being 14-15 October 2000.  He was also informed that he was entitled to an incap pay claim, and was provided the forms to do so. 

On 28 September 2000 the applicant's former employer stated that the applicant was employed by his company from 10 September 1994 through the present day, and that due to his injury on 18 August 1995 had been unable to work and earn his pay from 21 August 1995 through 1 January 1996 and 1 June 1999 through the present day.  He stated that he enclosed the incap pay forms.

A 29 September 2000 leave and earning statement (LES) shows that the applicant attended 25 unit training assemblies (UTA) during FY 2000 and was on annual training for 7 days during that FY.

In an 18 October 2000 e-mail, an official at Winn Army Community Hospital at Fort Stewart, Georgia, informed the applicant's UA that the applicant had been scheduled for an MEB on 1 November 2000.  The UA was also informed that she should not need anything else from the physician to get the applicant's incap pay, and that Army Regulation 40-3, paragraph 4-2j, authorizes pay and allowances to be continued until disability processing was completed or when he could perform his normal military duties. 

On 31 October 2000 the applicant completed an Incapacitation Pay Monthly Claim Form showing that he was incapacitated from 1 October 2000 to              31 October 2000, but that he worked at Wal-Mart during that period, and received $736.29 in pay.  Pay slips show his income from Wal-Mart in August, September, October, and November 2000.  He completed an Incapacitation (Incap) Pay form showing his pay from Wal-Mart in November 2000, and two incap pay forms showing that he received non-military income in December 2000 and in March 2001. 

A 1 November 2000 medical record shows that the applicant was evaluated at Winn for his problems with his left shoulder. In a 1 November 2000 medical report, that same examining physician stated that the applicant was able to do military duties/civilian duties during five years, but had continuing pain/unable to move shoulder, and continued to have pain and loss of range of motion.

In a 1 November 2000 MEB narrative summary the examining physician stated that the applicant sustained a fractured dislocation of his left nondominant shoulder acromioclavicular joint in 1995 during basic training, was treated conservatively and was able to heal and then continue on with his military duties and his civilian duties during the better part of the five years since his injury.  However, he has had progressive increase in pain and instability of the clavicle and acromion with diminishment in his ability to perform his military and civilian jobs.  In February 2000 he underwent a subacromial decompression and a distal clavicle excision.  However, he continued to have pain and loss of range of motion and was unable to perform his duties.  The doctor stated that the applicant had constant pain, could not run long distances because of motion of his shoulder, and was unable to do any type of push ups or sit ups.  He could not lift more than 10 pounds, could not reach overhead, and had decreased grip strength.  The doctor diagnosed the applicant's condition as fracture dislocation left acromioclavicular joint status post distal clavicle resection with pain, constant and moderate; sensory nerve injury left shoulder.  He stated that the applicant did not meet retention standards.  On 28 November 2000 an MEB determined that the applicant should be referred to a PEB.  The applicant agreed.  A              2 February 2001 addendum to the MEB indicated that the applicant did not use narcotics daily, and did not have a medication profile that supported narcotic use, and therefore, his pain rating should not be moderate, but slight.  The applicant agreed.  

On 5 January 2001 the applicant received a permanent profile because of his left shoulder pain.  

On 12 January 2001 in response to a query from his UA as to why he was working at Wal-Mart if he was deemed unfit to perform his military duties, the applicant stated that he was pending a PEB, and was informed that he was entitled to active duty pay and allowances until his disability processing was complete.  He stated that he had submitted his request for incap pay from June 1999 until 30 September 2000, but had not yet received any money, other than travel pay and miscellaneous drill pay.  He got a job with Wal-Mart to support himself and his family and to salvage his home.  He stated that he finally received a check because of his incapacitation in 1995.  He stated that he continues to work at Wal-Mart until the status of his incap pay could be worked out. 

On 9 February 2001 a PEB determined that the applicant was physically unfit for performance of his duties because of his chronic left shoulder pain, and recommended that the applicant be separated from the service with a 10 percent disability rating.  The applicant concurred.

On 6 April 2001 the applicant was discharged from the Army Reserve because of his physical disability.

On 9 June 2001 the applicant's commanding officer appointed an investigating officer to conduct a formal line of duty investigation into the incapacitation case of the applicant in order to determine if a line existed between the applicant's injury in 1995 through June 1999 where no medical documentation of treatment had been provided.   

A DD Form 261 (Report of Investigation Line of Duty and Misconduct Status), i.e., a formal line of duty investigation, shows that the applicant sustained a fractured clavicle to his left shoulder on 18 August 1995.  That report indicated that the applicant stated that he was not treated by any military or civilian doctors during the period 31 December 1995 and 5 June 1999 for the injury and that he stated that aggravated shoulder pain during this period was a result of the original injury.  The report indicated that the applicant stated that his pain was caused by activities associated with training in his unit and were not a result of his civilian occupation.  The findings were in line of duty.  The report was approved on 15 November 2001.

On 12 August 2001 the applicant's commanding officer provided a memorandum, a sequence of events, concerning the status of an investigation.  That memorandum shows - the applicant fractured his clavicle during initial active duty basic training on 18 August 1995, his cast was removed on 19 September 1995, he went to advanced training on 27 June 1996, completing it on 4 September 1996.  It shows that he passed the Army Physical Fitness Test (APFT) on           7 December 1996, went to annual training on 6 February 1998, passed the APFT on 18 July 1998, and received a basic recruit certificate of compliance as a correctional officer on 11 February 1999.  On 12 February 1999 an incap pay form for the period 24 August 1995 to 31 August 1995 was completed by his former employer.  He went to annual training on 25 March 1999.  On 5 June 1999 he received a temporary profile.  On 13 August 1999 he qualified as a sharpshooter with the rifle.  On 8 January 2000 he received another temporary profile, and in February had orthopedic surgery on his left shoulder.  In November 2000 he received an MEB, followed by a PEB.  He was discharged on 20 March 2001 with a 10 percent disability rating. 

The applicant's commanding officer stated that he contacted the applicant, who said that he did not see any civilian or military doctors from 31 December 1995 to 5 June 1999 for his shoulder pain, that he said his aggravated shoulder pains were a result of his original shoulder injury, and that his pains were caused by activities associated with training in the 841st Engineer Battalion, his Reserve unit, and that his platoon sergeant was made aware of his pains.  He stated that the applicant said that his aggravated shoulder pain was not a result of his civilian occupations between 31 December 1995 and 5 June 1999.  That officer stated that the applicant's shoulder problems were directly related to his original injury, and it appeared that his pains were constantly aggravated by training activities within his unit, and that documented complaints about his pain began shortly after December 1997; however, the applicant continued to participate in training. 

On 12 August 2001 the applicant's platoon sergeant stated that the applicant advised him in 1998 that he had injured his shoulder while in basic training.  He stated, however, that during 1997 the applicant was a heavy equipment operator, handling heavy objects, and that he also participated in an organized football game during the 1997 company picnic.  

On 6 February 2002 the applicant's former Regional Support Command informed the applicant that it was prevented from processing his request for any further incapacitation payments because of his formal line of duty was not approved until 15 November 2001, almost 7 months after his discharge.  Because of his discharge, he had been terminated from the military pay system; and, consequently the Army Reserve discontinued processing actions for pay and allowances.  He was informed to apply to this Board for relief.

In a 15 June 2002 letter to a MC, the applicant stated that he had injured his left clavicle in basic training, had been released from the Army with no treatment performed, but was told by the Fort Jackson surgeon that his unit would do follow-up and treatment.  Upon returning home, his unit informed him that the line of duty investigation was incorrectly completed, and that they could do nothing for him.  There were several attempts to get this rectified.  The line of duty was finally approved in May of 1997, yet he received no treatment or follow up except by his personal orthopedic physician.  His unit and commander were continuously advised of his situation.  He then transferred to a new company in the same unit in 1997, assigned a new UA, and his papers again refiled with no result, until another UA came along at the end of 1998.  The documents were refiled and seemed to be moving.  After almost 4 years he received a medical evaluation.  In June 1999 he received a profile.  A physician ordered an immediate appointment with the VA and stated that he was unfit to perform duties since August 1995, and should have been given an MEB.  He finally underwent surgery and was ordered to have physical therapy and convalescent leave.  Again his unit stated that he was not entitled to therapy or pay.  He received an MEB at Fort Stewart and was determined to be unfit for duty.  He was told not to perform any drills and not to work until 15 May 2000.  He called the Inspector General's office to investigate the practices of his unit, and the unit was ordered to comply with several steps.  However, he was ordered to resume drilling.  He attended drills, but refused to take the APFT.  He was not promoted as he should have been, and did not receive several medals he was entitled to.  He was a very dedicated, hard-working soldier.  In November 2000 he was again reevaluated through the MEB and deemed unfit and not fit for retention in the Army.  Because he was in the disability evaluation system, he was eligible for active duty pay and benefits, none of which he received.  He was discharged on 6 April 2001.  According to the regulations and statements of the physicians, he was entitled to active duty pay and benefits from the time of his injury through his discharge, which also meant creditable service for retirement purposes.  He was informed in February 2002 that due to the fact that he was discharged in April 2001, and because his line of duty was not approved until November 2001, the Army could not do anything further for him, and that his case was closed. 

On 18 October 2002, in response to his previous application to this Board, he was informed that his records were not available and that his application was returned without action.  He was also informed, however, that should he find his records and resubmit his request, he should also submit copies of his unit's attendance records showing which drills he attended, and copies of statements from the physicians which declared that he was unable to perform his military duties. 

There is no evidence and the applicant has not submitted any concerning a promotion.  The applicant has not provided any evidence or even any information concerning awards that he believes that he is entitled to.

With his application, the applicant submitted a 5 February 1997 copy of a USARC memorandum, which states in pertinent part, "Soldiers who have started disability processing with a fitness for duty physical or MEB are considered unfit for their military duties (tier 1 cases only).  When a military physician determines that the soldiers are unable to perform their military duties … and recommends they be referred to a MEB, it is not necessary to have the physician complete a USARC Form 46-2-R for every month that incapacitation pay is filed with the Reserve Component Pay Support Office, Fort Riley, Kansas.  One form … is sufficient.  The fact that the soldier has been referred by the military physician into the disability process renders the soldier unfit. … The soldier remains in an unfit status for pay purposes until the PEB renders their decision."

Tier 1 cases, as defined in USARC Regulation 140-3, refers to claims by soldiers who are unfit to perform their military duties as a result of injury, illness or disease caused by military service.  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 income received during the month of the claim, and are not eligible to draw retirement points.

A series of Comptroller General (CG) decisions have clarified eligibility for, and duration of incapacitation pay for Army National Guard/USAR soldiers disabled due to injury or disease incurred in the line of duty.  36 CG 692 ruled that entitlement to disability pay stops, upon finding by a service medical officer, that the member is able to perform his military duty.  37 CG 558 ruled that the member's right to disability payment should be decided on the basis of whether or not he is returned to a duty status and without regard to the amount or degree of restricted or limited duty he performs after his return.  40 CG 733 ruled that disability payment entitlement is based on inability to perform military duty, not normal civilian pursuits, and that each service concerned would determine when the member recovers sufficiently to perform normal military duties.  48 CG 1 ruled that normal military duty status must be determined on the facts pertaining to each case.  It stated that in certain highly specialized, hazardous duties, such as aviators, divers or underwater demolition, normal duty required capability to perform the full range of duties.  However, in most other cases, where a reservist is capable of performing limited duty, the actual return to duty status was the determining factor to establish the cut-off date for disability pay.
 
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.  Prerequisites for entitlement to receive incapacitation pay are inability of reservists to perform their normal military duties or satisfactory demonstration of loss of nonmilitary earned income.  In the latter case, the burden to prove loss rests with the soldier.  IDT pay is considered to be military income.  If the reservist continues to work at his or her civilian job, 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.

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 evidence concerning the applicant's ability to perform his military and civilian duties is conflicting and inconsistent.  An Army Reserve medical officer stated that the applicant was not fit to perform his military duties from August 1995 through 5 June 1999, the date of his evaluation.  That doctor stated, however, that he was fit to perform his civilian duties as a correctional officer.  Another medical officer, an Army physician at Fort Stewart, on 28 March 2000, stated that the applicant was unfit for his military duties from 5 June 1999 to      28 March 2000; and that he was unfit for his civilian duties as a firefighter/paramedic from 21 August 1995 to 31 December 1996, and from         5 June 1999 to 28 March 2000.  He also stated that he could not perform his civilian duties until 15 May 2000.  That same Army medical officer, however, stated in his 1 November 2000 MEB narrative summary that the applicant was able to heal and continue with his military and civilian duties during the better part of the five years since his injury.  The applicant himself stated that after his evaluation on 28 March 2000, and upon returning home, he was ordered to resume drilling.  He stated that he attended drills, but refused to take the APFT.  His unit commander stated in September 2000 that the applicant was physically capable of reasonably performing his duties, and that in March of that year the applicant pleaded to go on an advance party to Fort Irwin.  The evidence shows that he performed annual training from 1 through 7 March, less than 1 month after his shoulder operation.

2.  The applicant was at advanced training for two months in 1996 at Fort Leonard Wood, successfully completed the APFT in December 1996, drilled with his Reserve unit in 1996, 1997, 1998, 1999, and at least part of 2000.  He qualified with his rifle in August 1999, two months after the date that an Army physician determined that he was unfit for his military duties.  He was on active duty [annual training] in 1998, 1999, and 2000.  His commanding officer indicated that the applicant himself stated that he did not see any doctors between              31 December 1995 to 5 June 1999.  

3.  The applicant stated on 12 January 2001 that his PEB was in the process, and that he had submitted his request for incap pay from June 1999 until            30 September 2000, but had not received any money other than travel pay and miscellaneous drill pay.  He also stated that he received the check for incap pay for 1995, and that he was hired by Wal-Mart on 26 August 2000.   

4.  The applicant's former employer, Mr. "Mc," of the "The Tree Man," company, stated on 28 September 2000 that the applicant was unable to work for him from 21 August 1995 through 1 January 1996, and from 1 June 1999 through            28 September 2000; however, the evidence shows that he was a corrections officer during a portion of the latter period, and that he had been fired from that job at sometime during that period and was drawing unemployment pay.  Furthermore, beginning in late August 2000 the applicant was working with Wal-Mart. 

5.  Notwithstanding the 28 March 2000 statement prepared by the Army physician at Fort Stewart that the applicant's job was that of a firefighter/paramedic, the applicant himself, in a letter to a MC around that time period stated that he was a volunteer firefighter with a job pending; consequently, it appears that the applicant had no civilian job during that time.    

6.  The applicant received incapacitation pay for 1995, as he has stated.  He performed his military duties, as a heavy construction equipment operator thereafter through 1999; and part of 2000; however, the applicant's complete drill status for all of that year is unavailable.  Nevertheless, and notwithstanding the inconsistency of the available evidence, he did perform his military duties, presumably receiving pay for those duties, both IDT (inactive duty training) and AT (annual training).  He has not shown to the satisfaction of this Board that he is entitled to incapacitation pay from 1 January 1996 until the date of his discharge on 6 April 2001.  Nor, because of the conflicting evidence concerning his civilian jobs, and despite the statements from his former employer, has the applicant satisfactorily shown a loss of nonmilitary income during that time period.  One doctor stated that he could perform his civilian duties, but not his military job.  The applicant himself stated that he aggravated his shoulder injury, not during his civilian job, but in performing his military duties.  Considering the nature of his military duties, it would seem to this Board that if the applicant did perform his military duties, as the evidence so shows, then he could also do his civilian duties.      

7.  The applicant's contention that he should have been promoted and should have been awarded medals, is not supported by any evidence.   

8.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

9.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

10.  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

__SAC_ _  ___SLP _  ___JTM _  DENY APPLICATION

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

INDEX

CASE ID	AR2002082762	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030610	
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.	107.00	
2.	110.00	
3.		
4.		
5.		
6.