IN THE CASE OF:	  

		BOARD DATE:	        13 AUGUST 2008

		DOCKET NUMBER:  AR20080007635 


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, in effect, that the entry in item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed from "Physical Disability – Temporary" to "Physical Disability – Permanent, Combat-Related Injury."  He also essentially requests that a statement be added to item 18 (Remarks) of his DD Form 214 which shows that his disability was the result of a combat-related injury as defined in 
26 U.S.C. 104.  

2.  The applicant essentially states that his DA Form 199 (Physical Evaluation Board [PEB] Proceedings), dated 18 December 1986, and DA Form 3713 (Data for Retired Pay), dated 27 February 1987 both state that his disability resulted from a combat-related injury as defined in 26 U.S.C. 104.  He also states, in effect, that because his DD Form 214 does not state that his disability was the result of a combat-related injury, the Department of Veterans Affairs (DVA) will not give him a combat code.

3.  The applicant provides his DA Form 199, DA Form 3713, "Member-1" and "Member-4" copies of his DD Form 214, and a memorandum, dated 21 July 1988, which shows that he was removed from the Temporary Disability Retired List (TDRL) and retired due to permanent physical disability in support of this application.




CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military records show that he enlisted in the Regular Army on 13 November 1984.  He completed basic and advanced individual training and was awarded military occupational specialty 67U (Medium Helicopter Repairer).  He then departed for a tour in Alaska on 21 July 1985 for what would be his first and only permanent duty assignment.

3.  The applicant's military records also show that 10 April 1987, the applicant was honorably retired from the Regular Army and placed on the TDRL on 
11 April 1987.  The Standard Form 502 (Narrative Summary [Clinical Resume]), dated 21 October 1986, that was prepared during the applicant's Medical Evaluation Board essentially shows that the applicant had an approximate 2-year history of knee pain which apparently stemmed from a fall on both of his knees on an obstacle course during basic training. 

4.  Item 28 of the applicant's DD Form 214 has an entry of "Physical Disability – Temporary."  Item 26 (Separation Code) of this document has an entry of "SFK." Item 18 of this document does not contain an entry stating that his disability was the result of a combat-related injury as defined in 26 U.S.C. 104. 

5.  Orders, dated 21 July 1988, removed the applicant from the TDRL on 
4 August 1988, and retired him due to permanent physical disability on 5 August 1988.  

6.  The applicant essentially stated that his DA Form 199, dated 18 December 1986, and DA Form 3713, dated 27 February 1987 both state that his disability resulted from a combat-related injury as defined in 26 U.S.C. 104.  He also stated, in effect, that because his DD Form 214 does not state that his disability was the result of a combat-related injury, the DVA will not give him a combat code.
7.  Army Regulation 635-5 (Separation Documents) provides guidance on the preparation of the DD Form 214.  The version of this regulation in effect at the time of the applicant's retirement on 10 April 1987 stated that for item 28, enter the narrative reason for separation as shown in Army Regulation 635-5-1 (Separation Program Designator [SPD] Codes) based on the regulatory or other authority.

8.  Army Regulation 635-5-1, in effect at the time, provided that the narrative reason for separation for a Soldier issued an SPD code of "SFK" was "Physical Disability – Temporary."

9.  Army Regulation 635-5 in effect at the time of the applicant's discharge did not require or provide that a statement indicating that a disability was the result of a combat-related injury as defined in 26 U.S.C. 104 be entered in item 18 of the DD Form 214.

10.  Title 26, United States Code, Section 104 defines combat-related as an injury which resulted from armed conflict, extrahazardous service, or under conditions simulating war.

11.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the entry in item 28 of his DD Form 214 should be changed from "Physical Disability – Temporary" to "Physical Disability – Permanent, Combat-Related Injury."  He also contends that a statement should be added to item 18 of his DD Form 214 which shows that his disability was the result of a combat-related injury as defined in 26 U.S.C. 104.  

2.  While the applicant was eventually retired due to permanent disability on 
5 August 1988, at the time of his retirement on 10 April 1987, he was only transferred to the TDRL.  As a result, and due to the issuance of an SPD code of "SFK," the entry in item 28 of his DD Form 214 appropriately reflects that the narrative reason for his separation on 10 April 1987 was due to temporary physical disability.  Additionally, as there is no regulatory requirement or provision for adding "Combat-Related Injury" after the proper narrative reason for separation for Soldiers assigned an SPD code of "SFK," there is no basis for changing the applicant's narrative reason for separation shown on his DD Form 214.

3.  While it is unclear why the applicant believes he is being deprived some level of benefits or care from the DVA as a result of his DD Form 214 not containing an entry that his disability was the result of a combat-related injury as defined in 26 U.S.C. 104, as there was no requirement or provision that a statement indicating that a disability was the result of a combat-related injury as defined in 26 U.S.C. 104 be entered in item 18 of the DD Form 214, there is no basis for granting relief to this portion of the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  While the Board regrets that a more favorable response could not be accomplished, it wishes to thank the applicant for his service to the United States.  The applicant and all Americans should be justifiably proud of his honorable service in arms.




      ___        XXX                ___
                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.

ABCMR Record of Proceedings (cont)                                         AR20080007635



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ABCMR Record of Proceedings (cont)                                         AR20080007635



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