BOARD DATE: 3 August 2017 DOCKET NUMBER: AR20150019053 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x_____ __x______ _x__ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 3 August 2017 DOCKET NUMBER: AR20150019053 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 to amend the decision of the ABCMR set forth in Docket Number AR20120009342, dated 27 November 2012. ___________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. BOARD DATE: 3 August 2017 DOCKET NUMBER: AR20150019053 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 reconsideration of her earlier requests for: a. incapacitation pay for the period 4 September 2003 through 4 February 2004; b. simultaneous processing for administrative separation and physical disability evaluation; c. revocation of her U.S. Army Reserve (USAR) discharge orders, dated 17 October 2006; and d. reinstatement in the USAR in the rank of major. 2. The applicant states: a. The Army Board for Correction of Military Records (ABCMR) Record of Proceedings, dated 27 November 2012, was in error because it relied on a nonapplicable regulation to conclude that her request for incapacitation pay did not contain the required documentation based on the evidence of record. b. The ABCMR incorrectly referenced Department of the Army Pamphlet 135-381 (Incapacitation of Reserve Component Soldiers Processing Procedures) as applicable to her case. The regulation cited was not in effect at the time pertinent to her claim for incapacitation pay. The first DA Form 7574 (Incapacitation Pay Monthly Claim Form) was issued in July 2005. c. The ABCMR Record of Proceedings, dated 27 November 2012, did not follow applicable Title 37, U.S. Code, section 204, and Army Regulation 135-381 (Incapacitation of Reserve Component Soldiers). d. Title 37, U.S. Code, section 204(g)(1), states a member of a Reserve Component of a Uniformed Service is entitled to the pay and allowances provided by law or regulation for a member of a Regular Component of corresponding grade and length of service whenever such member is physically disabled as the result of an injury, illness, or disease incurred or aggravated in the line of duty while performing active duty. The ABCMR did not apply this provision to her case. e. Army Regulation 135-381, dated 1 June 1990, is the version of the regulation in effect at the time of her claim for incapacitation pay. The regulation contains only general procedures regarding the incapacitation pay process and does not include a requirement to submit a DA Form 7574. f. To establish an entitlement to incapacitation pay, Army Regulation  135-381, paragraph 4-1d, dated 1 June 1990, states a prerequisite for entitlement to incapacitation pay is a completed, favorable line-of-duty investigation of injury, illness, or disease. Paragraph 4-1e states prerequisites for entitlement to incapacitation pay are inability to perform 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. (Inactive duty training pay is considered to be military income). Paragraph 4-1f states on release from active duty or termination of inactive duty training, a Soldier may qualify for this entitlement. Paragraph 4-1k states there is no automatic entitlement to incapacitation pay. Each request is judged on a case-by-case basis and is based on a Soldier's inability to perform normal military duties or demonstrated loss of nonmilitary income. Paragraph 4-1m states incapacitation pay may be paid for up to a maximum of 6 months (180 days). The 6-month period need not be consecutive. g. Army Regulation 135-381, paragraph 4-2(a), states a determination of inability to perform normal military duties will be made by a military medical authority. The ABCMR did not apply this provision to her case. h. In the present case, the evidence of record contains the required documentation for entitlement to incapacitation pay and shows she provided the documentation to her commander for consideration of her request. i. A memorandum, dated 14 August 2003, shows she sent a request for incapacitation pay to her commander. A DD Form 689 (Individual Sick Slip), dated 4 September 2003, states her unit approves incapacitation in the remarks section. Based on the rules regarding entitlement to incapacitation pay, as set forth in Title 37, U.S. Code, section 204(g), and Army Regulation 135-381, dated 1 June 1990, she is entitled to incapacitation pay for the period 4 September 2003 through 4 February 2004 due to her inability to perform normal military duties and a military medical authority certified that she was not fit to perform military duties from 4 September 2003 to 4 March 2004. 3. The applicant further states: a. The ABCMR Record of Proceedings, dated 27 November 2012, was in error because it did not follow applicable Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), dated 8 February 2006, paragraph 4-4. This paragraph states officers who are believed to be medically unfit will be processed simultaneously for elimination and physical disability evaluation. Commanders will ensure that the actions are processed together, identified, and cross-referenced. Once complete, both the elimination and disability actions will be forwarded directly to the Secretary of the Army who will decide the proper disposition of the case. b. In her case, she was a commissioned officer who was a candidate for administrative separation under other than honorable conditions. Neither the Secretary of the Army nor the Assistant Secretary of the Army approved her administrative separation action on 17 October 2006. She is entitled to simultaneous processing under Army Regulation 635-40, paragraph 4-4, because the Army violated regulatory guidelines to simultaneously process her administrative separation and physical disability evaluation. c. The ABCMR Record of Proceedings, dated 27 November 2012, was in error because it did not follow applicable Army Regulation 135-175 (Separation of Officers), dated 28 February 1987. Paragraph 1-3a states Reserve Component officers will be separated only by: (1) the Secretary of the Army; (2) commanders specified in this regulation under conditions set forth in this and other pertinent regulations; (3) commanders specified in special directives of the Secretary of the Army under the conditions in these directives; and (4) the discharge authority delegated to commanders by this regulation will not include authority to discharge an officer under a court-martial sentence to dismissal, prior to completion of appellate review, unless the discharge authority intends the discharge to act as a remission of the conviction. As such, the regulation delegates board discharge authority to individuals such as the Secretary of the Army and the U.S. Army Human Resources Command commander. Her discharge orders were not administratively correct because the discharge authority did not have delegated authority to discharge her from the USAR. d. Army Regulation 135-175, paragraph 1-10b, states a discharge order may not be revoked after its effective date provided: (1) the order was published from a headquarters authorized to approve the discharge and to issue a discharge certificate; (2) there is no evidence that the discharge was obtained under fraudulent circumstances; and (3) the officer concerned received actual or constructive notice of the discharge. e. The discharge authority was not a "headquarters authorized" to issue her a discharge from the USAR. Therefore, her discharge can be revoked if it was not published by a "headquarters authorized" to approve the discharge and to issue a discharge certificate. An action without authority is void ab initio (from the beginning). f. Army Regulation 135-175, paragraph 2-8a, states except as otherwise provided, Headquarters, Department of the Army, will take final action on the recommendations of boards of officers and resignation in lieu of involuntary separation. Area commanders will forward these cases, with the recommendation and remarks, to the Commander, USAR Personnel Center. Headquarters, Department of the Army, did not take final action in her case. g. Department of Defense Instruction 1241.2 (Reserve Component Incapacitation System Management), dated 3 May 2001, paragraph 6.3.2.1, states a member who remains not fit to perform military duty 1 year after the initial date when the injury, illness, or disease was first incurred or aggravated shall be referred to the Disability Evaluation System if the member is not projected to be fit for duty within the next 6 months. She was never referred through the Disability Evaluation System for a fit-for-duty determination physical. 4. The applicant provides: * two applications * 19 exhibits as outlined on page 6 of her letter, dated 24 October 2015 CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20120009342 on 27 November 2012. 2. The applicant's argument is new evidence that was not previously considered by the Board and warrants consideration at this time. 3. Having prior Reserve commissioned officer service in the USAR and Army National Guard, she transferred to the USAR on 2 April 1999. She was promoted to the rank/grade of major on 19 June 2002. 4. She was ordered to active duty in support of Operation Enduring Freedom on 17 January 2003. She was honorably released from active duty on 19 August 2003 by reason of completion of required active service. 5. She provided: a. a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 8 August 2003, showing she was diagnosed with carpel tunnel syndrome in both hands; b. a memorandum, dated 14 August 2003, showing she requested incapacitation pay and allowances and she certified she was injured in the line of duty on 30 May 2003, she could not perform normal military and civilian duties satisfactorily, and her claim was substantiated by a letter from her supervisor and an approved line-of-duty investigation; c. a U.S. Army Reserve Command Form 46-2-R (Military Physician's Statement of Soldier's Incapacitation/Fitness for Duty), dated 4 September 2003, showing the examining physician certified she was not fit to perform military duties from 4 September 2003 to 4 March 2004; and d. a DD Form 689, dated 4 September 2003, showing she delivered incapacitation documents to the military treatment facility for a military physician to complete. The remarks section states, "Unit approves incapacitation. Attached documents for military physician to complete." 6. On 3 December 2005, a Show-Cause Board was convened under the provisions of Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) to determine if the applicant had committed multiple acts of misconduct. a. The applicant's commander testified he met the applicant the day after he took command of the unit and they briefly discussed her entitlement to incapacitation pay. (1) He stated when the applicant was assigned to his command she had already accumulated 12 notices of unsatisfactory participation from her previous unit. He saw her at one unit battle assembly in 2003 and he had not seen her again until the day he attempted to serve her the notice of board proceedings. (2) He noted the applicant was ordered to perform annual training on 18 April 2004, at which time she was to speak with the Army Regulation 15-6 investigating officer regarding her case; however, she failed to report for duty. (3) He added that in response to the applicant's complaint regarding her incapacitation pay, he responded to a Member of Congress. He informed the Member of Congress that the applicant was under suspension of favorable personnel actions because she was under investigation due to unsatisfactory performance. b. The board proceedings show the applicant was personally notified of the board by a major who put the notification in her hands, but she refused to sign for the notification. The applicant's commander also attempted to serve the notice of separation on the applicant at her workplace; however, she slammed the door in his face. c. The applicant's commander testified the applicant was ambulatory on the two occasions he saw her and he was unaware of any personal or physical disability that would have precluded her from attending unit battle assemblies (inactive duty training). 7. Headquarters, 7th Army Reserve Command, Schwetzingen, Germany, Orders 06-290-00003, dated 17 October 2006, discharged her from the USAR under other than honorable conditions effective 1 October 2006 under the provisions of Army Regulation 135-175. 8. On 26 September 2008, the Army Discharge Review Board denied her request for a discharge upgrade. 9. On 21 April 2009 in a personal appearance hearing, the Army Discharge Review Board denied her request for a discharge upgrade. 10. Her request for voidance of her involuntary separation and reinstatement in the USAR effective 1 October 2006 was considered by the ABCMR on 10 December 2009 and denied. On 7 April 2011, the ABCMR reconsidered her request and it was again denied. 11. On 27 November 2012, the ABCMR denied her request for removal of all documents relating and/or referring to her involuntary separation from the USAR, reinstatement in the USAR, evaluation of her medical condition by a medical evaluation board, and incapacitation pay for the period 20 August 2003 through the date of completion of her physical disability evaluation and separation from the USAR. 12. In the processing of this case, an advisory opinion was obtained from the Chief, Compensation and Entitlements Division, Department of the Army Office of the Deputy Chief of Staff, G-1, on 8 June 2017. The opinion stated: a. After careful review, the Army G-1 does not support reconsideration for the incapacitation claim period 4 September 2003 through 4 March 2004. b. The Compensation and Entitlements Division's review of the packet determined the applicant did not present any new evidence with respect to the line-of-duty injury. c. As a result, Army G-1 concurs with the ABCMR's final decision, dated 29 November 2012. 13. A copy of the advisory opinion was forwarded to the applicant for comment and/or rebuttal. She did not respond. REFERENCES: 1. Army Regulation 135-381 establishes policies regarding incapacitation pay for Soldiers of the Army National Guard, Army National Guard of the United States, and USAR. It states a Soldier is entitled to incapacitation pay for a line-of-duty injury in which the Soldier is unable to perform his or her military and/or civilian duties. 2. Army Regulation 635-40, paragraph 4-3, states Reserve Component Soldiers who have nine or more unexcused absences from scheduled inactive duty training during a 1-year period will be considered unsatisfactory participants. They will not be referred to or continue Disability Evaluation System processing unless the Soldier has a documented line-of-duty medical condition which fails medical retention standards. The condition must be the direct medical cause or a significant contributing factor to the unexcused absences. 3. Department of Defense Directive 1241.1 (Reserve Component Medical Care and Incapacitation Pay for Line of Duty Conditions), paragraph 4.5, states the Military Departments shall authorize pay and allowances, to the extent permitted by reference (c), for a Reserve Component member who is not medically qualified to perform military duties, as determined by the Secretary concerned, because of an injury, illness, or disease incurred or aggravated in the line of duty, or to provide pay and allowances to a member who is fit to perform military duties, but experiences a loss of earned income because of an injury, illness, or disease incurred or aggravated in the line of duty. This is commonly referred to as incapacitation pay. DISCUSSION: 1. The applicant requests incapacitation pay for the period 4 September 2003 through 4 February 2004. 2. She contends the Board's November 2012 decision to deny her request for incapacitation pay was in error because it relied on a nonapplicable regulation (Department of the Army Pamphlet 135-381) to conclude her request did not contain the required documentation. She states: * the regulation cited was not in effect at the time pertinent to her claim for incapacitation pay * the evidence of record contains the required documentation for entitlement to incapacitation pay * she provided the documentation to her commander for consideration of her request * military medical authority certified that she was not fit to perform military duties from 4 September 2003 to 4 March 2004 3. The advisory official does not support the applicant's request for reconsideration for incapacitation pay for the period 4 September 2003 through 4 March 2004 because she did not present any new evidence with respect to the line of duty injury. 4. Her request for simultaneous processing for administrative separation and physical disability evaluation was noted. However, the governing regulation states a Reserve Component Soldiers with nine or more unexcused absences from scheduled inactive duty training during a one year period will not be referred to or continue Disability Evaluation System processing unless the Soldier has a documented line of duty medical condition which fails medical retention standards. There is no evidence and the applicant provided no evidence showing her medical condition was the direct medical cause or a significant contributing factor to her unexcused absences. 5. The evidence shows she was discharged in the rank of major from the USAR on 1 October 2006 with an under other than honorable conditions discharge. 6. She requests her USAR discharge orders, dated 17 October 2006, be revoked and she be reinstated in the USAR in the rank of major. However, there is no evidence showing her discharge was in error. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150019053 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150019053 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2