MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


         BOARD DATE: 5 September 2002
         DOCKET NUMBER: AR2002069269

         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
Ms. Joyce A. Wright		Analyst

The following members, a quorum, were present:

Ms. Celia L. Adolphi		Chairperson
Mr. John T. Meixell		Member
Mr. Melvin H. Meyer		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)

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APPLICANT REQUESTS: That the entry "Physical disability with severance pay" be removed from item 28 (Narrative Reason for Separation) of his DD Form
214 (Certificate of Release or Discharge from Active Duty).

APPLICANT STATES: That item 28 is in contradiction with item 18 (Remarks) of his DD Form 214. He did not have a "physical disability," nor did he receive "severance pay." He was awarded a 10 percent disability rating by the Veterans Administration (VA) after his separation. In support of his application, he submits a copy of his DD Form 214.

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

The applicant's records contain a copy of his entrance physical examination, dated 19 November 1988, which was prepared prior to his entrance on active duty, which shows that he was qualified for enlistment with a 111111 physical profile.

He enlisted on 16 February 1989, as military policeman (95B).

The applicant's records contain a copy of a DA Form 3349 (Physical Profile), dated 26 April 1989, which shows that he was issued a permanent profile of 111114 with assignment limitations of "no assignment where outpatient psychiatric follow-up care is not available." It also stated that he had a bipolar disorder medical condition.

The applicant appeared before a Medical Evaluation Board (MEB) on 27 April 1989. He was diagnosed as having a bipolar disorder; manic episode, acute, mildly severe; as manifested by a distinct period of abnormally and persistently elevated and occasionally irritable mood. The MEB stated that the applicant
was unfit for further military duty under the provisions of Army Regulation 40-501, chapter 3, paragraph 3-32; and should be referred to a Physical Evaluation Board (PEB). The MEB also stated that the applicant was mentally competent for pay purposes, had the capacity to understand the nature of, and to cooperate in PEB proceedings, and was not dangerous to himself and others. The applicant’s condition was not service aggravated, incurred while entitled to base pay, and did not exist prior to service (EPTS). The applicant did not desire to continue on active duty under Army Regulation 635-40. The findings and recommendations were approved, and the applicant was referred to a PEB. The applicant concurred with the MEB’s findings and recommendations.

On 5 June 1989, the applicant's case was considered by an informal PEB which convened at Fort Gordon, Georgia. The PEB considered the applicant's condition of bipolar disorder. The PEB concluded that the applicant had activity limitations imposed by his permanent profile which precluded adequate performance of his normal duties associated with his office, grade, rank or rating in his military occupational specialty (MOS) of 95B00. The PEB also stated that ratings of less than 30 percent for soldiers with less than 20 years retirement service required separation with severance pay in lieu of retirement. The PEB found the applicant unfit and recommended a combined rating of 10 percent and separation from service with severance pay. The applicant concurred with the findings of the PEB and waived a formal hearing of his case on 13 June 1989.

The applicant's records contain a copy of a message from the Total Army Personnel Command (PERSCOM), dated 23 June 1989. PERSCOM stated that the applicant was entitled to severance pay in the pay grade of E-1 with a disability rating of 10 percent. PERSCOM also stated that, although authorized separation with severance pay, the provisions of paragraph 10b, appendix C, of Army Regulation 635-40 applied. In computing pay for disability with severance pay, a member with less than 6 months service cannot receive severance pay, and the member may apply to the VA for disability compensation.

He was furnished an uncharacterized discharge on 14 July 1989, under the provisions of 635-40, paragraph 4-24e(3), physical disability with severance pay. He completed 4 months and 29 days of creditable service. Item 18 of his
DD Form 214 shows the entry "Severance pay: None." He was issued a separation code of "JFL."

After his separation, the applicant filed a claim with the VA for his service-connected disability. On 22 March 1990, he was granted a 10 percent disability for psychosis.

The applicant applied to the Army Discharge Review Board (ADRB) for a change in his narrative reason for separation on 7 December 2001. The ADRB determined that his discharge was proper and equitable and denied his request for a change in his narrative reason for separation on 22 February 2002.

Army Regulation 40-501 provides policy on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures. Chapter 3 lists the various medical conditions and physical defects that may render a soldier unfit for further military service. Paragraph 3-32 states that affective disorders (mood disorders) are causes for referral to an MEB.

Paragraph 4-24 of Army Regulation 635-40 pertains to disposition by PERSCOM upon the final decision of the Physical Disability Agency (PDA). It states that PERSCOM will dispose of the case by publishing orders or issuing proper instructions to subordinate headquarters, or return any disability evaluation case to the United States Army Physical Disability Agency (USAPDA) for clarification or reconsiderations when newly discovered evidence becomes available and is not reflected in the findings and recommendations. Subparagraph 4-24b(3) applies to separation for physical disability with severance pay.
Paragraph 10b, Appendix C, of Army Regulation 635-40, in effect at that time, states, in pertinent part, that a member with less than 6 months’ service cannot receive severance pay. The member may apply to VA for disability compensation.

Army Regulation 635-5-1, in effect at that time, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons. The regulation shows that the separation program designator (SPD) "JFL," as shown on the applicant’s DD Form 214, is appropriate for involuntary discharge when the narrative reason for discharge is "Disability, Severance Pay" and that the authority for discharge under this SPD is Army Regulation 635-40, paragraph 4-24b(3).

Title 38, United States Code, section 310 and 331, permits the VA to award compensation for disabilities which were incurred in or aggravated by active service.

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 of record shows that the applicant was issued a permanent physical profile of 111114 and appeared before an MEB. The MEB stated that the applicant was unfit for further military duty under the provisions of Army Regulation 40-501 and was referred to a PEB. The PEB found the applicant unfit, recommended a combined rating of 10 percent, and separation from service with severance pay.

2. The applicant was discharged on 14 July 1989, under the provisions of Army Regulation 635-40, for disability with severance pay and was assigned an SPD code of "JFL" in accordance with established regulations.

3. The Board notes the message published by PERSCOM, dated 23 June 1989, that stated that the applicant was entitled to severance pay in the pay grade of
E-1 with severance pay. Although authorized severance pay, provisions of paragraph 10b, appendix C, of Army Regulation 635-40 applies. The applicant was not entitled to severance pay due to his time in service of less than 6 months and was entitled to apply to VA for disability compensation.

4. The applicant's DD Form 214 in item 28 shows the entry " Physical disability with severance pay," however; finance was unable to compute his pay for severance pay due to his insufficient service of less than 6 months. Therefore, he is not entitled to removal of the entry "Physical disability with severance pay" in item 28 of his DD Form 214.
5. 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 this requirement.

6. 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

__ca__ ___jm___ ___mm_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002069269
SUFFIX
RECON
DATE BOARDED	20020905
TYPE OF DISCHARGE	UNCHAR
DATE OF DISCHARGE	19890714
DISCHARGE AUTHORITY	AR 635—40 paragraph 4-24b(3)
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 191
2.
3.
4.
5.
6.