IN THE CASE OF:	

		BOARD DATE:	  30 December 2008

		DOCKET NUMBER:  AR20080014935 


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 item 28 (Narrative Reason for Separation), of his DD Form 214 (Certificate of Release or Discharge from Active Duty), be corrected to show the entry "Disability, Severance Pay, Combat Related" instead of the entry "Disability, Severance Pay, Non-Combat Related."

2.  The applicant states, in effect, that his disability was based on an injury during a period of war as defined by the law and in Title 26 USC (United States Code), Section 104, which is listed on his separation orders in lines f and g. 

3.  The applicant provides a copy of his separation orders, a copy of his DA Form 199 (Physical Evaluation Board (PEB) Proceedings), and a copy of his DD Form 214 in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the Regular Army on 27 January 2005.  He was trained as a light weapons infantryman, in military occupational specialty (MOS) 11B.  

2.  The applicant’s history of illness shows, in part, that he was injured on a daytime parachute jump with a combat load on 11 September 2006.  He landed awkwardly on inclined ground suffering from an inversion injury of his right ankle.  He experienced a pop and immediate pain.  He required immobilization, was given pain medication, physical therapy, and arthroscopy.  
3.  On 14 December 2007, the applicant's case was considered by a Medical Evaluation Board (MEB).  The applicant was diagnosed as having chronic ankle pain secondary to osteochondral defect and ligament injury.  He met the retention standards for the following conditions:  mild exercise induced asthma, well controlled; adjustment disorder, resolved; insomnia; and left knee pain, intermittent.  His ailment was ruled to have been incurred in line of duty (LOD), while entitled to base pay; it did not exist prior to service (EPTS); and it was permanently aggravated by active duty service.  The applicant indicated that he did not desire to continue on active duty.  The findings and recommendations were approved on 6 February 2008.  The applicant concurred on 26 February 2008.  The applicant was referred to a PEB.

4.  On 30 April 2008, the applicant appeared before a formal PEB with counsel.  He was diagnosed as having right ankle pain and was medically unfit to perform the duties required of a Soldier of his rank and primary specialty.  The PEB found the applicant physically unfit and recommended a rating of 20 percent and separation with severance pay if otherwise qualified.  The PEB indicated that the applicant’s separation was based on a disability resulting from an injury or disease received in LOD as a direct result of armed conflict or caused by an instrumentality of war and incurred in the LOD during a period of war as defined by law.  The PEB also indicated that the applicant's disability did result from a combat related injury as defined in Title 26, USC, Section 104.  The applicant concurred with the results of the PEB on 1 May 2008.

5.  The applicant was honorably discharged on 13 August 2008, under the provisions of Army Regulation 635-40 in accordance with (IAW) the National Defense Authorization Act (NDAA) 2008, for disability with severance pay.   

6.  Item 26 (Separation Code), of the applicant's DD Form 214, shows the entry, "JFO," and item 28 (Narrative Reason for Separation), shows the entry, "Disability, Severance Pay, Non-Combat Related." 

7.  The applicant provided a copy of his separation orders.  Item f of his orders shows the entry "Disability is based on injury or disease received in LOD as a direct Result of Armed Conflict or caused by an instrumentality of war and incurred in the LOD during a war period as defined by law:  Yes.  "Item g shows the entry "Disability resulted from a combat related injury as defined in 26 USC 104:  Yes."  

8.  Army Regulation 635-40 provides the policy and procedure for evaluation of the physical fitness of Soldiers who may be unfit to perform their military duties because of physical disabilities.

9.  Paragraph 4-24 of Army Regulation 635-40 pertains to disposition of cases by the US Army Human Resources Command (USAHRC) upon the final decision of the Physical Disability Agency (PDA).   It provides that the USAHRC will dispose of the case by publishing orders or issuing proper instructions to subordinate headquarters, or return any disability evaluation case to the PDA 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.

10.  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 SPD Code of "JFL" is appropriate for separation when the narrative reason for discharge is "disability, severance pay" and that the authority for discharge under this SPD Code is "Army Regulation 635-40, chapter 4, paragraph 4-24b(3).  

11.  ALARACT (All Army Activities) Message 147/2008, dated 13 June 2008, Subject:  Implementation of new SPD codes for the disability-related provisions of NDAA 2008 and the Disability Evaluation System (DES) Pilot Program implements new SPD codes for the disability related provisions of the NDAA 2008 and the DES Pilot Program.  This message states that the Department of Defense (DOD) Memorandum, dated 13 March 2008, directed implementation of the following four new SPD Codes pertaining to the rating of conditions and the calculation of disability severance pay:

	a.  SPD Code of JFI is appropriate when the narrative reason for discharge is disability, severance pay, combat related, and the authority is Army Regulation 635-40, chapter 4; 

	b.  SPD Code of JFO is appropriate when the narrative reason for discharge is disability, severance pay, non combat related, and the authority is Army Regulation 635-40, chapter 4;

	c.  SPD Code of JEA is appropriate when the narrative reason for discharge is disability, severance pay, combat related (enhanced), and the authority is Army Regulation 635-40, chapter 4; and

	d.  SPD Code of JEB is appropriated when the narrative reason for discharge is disability, severance pay, non combat, (enhanced) related, and the authority is Army Regulation 635-40, chapter 4. 

12.  It was also directed that SPD Codes of JFI and JFO would replace the SPD Codes of JFL and JEA.  The SPD Code of JEB would also replace the SPD Code of JEL.  The message indicated that regulations would be updated to include the new SPD Codes.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant appeared before an MEB.  He was diagnosed as having right ankle pain secondary to osteochondral defect and ligament injury.  His condition was determined to have been incurred in the LOD, while entitled to base pay, not EPTS, which was permanently aggravated by active duty service.  The applicant indicated that he did not desire to continue on active duty.  He was referred to a PEB. 

2.  The PEB found the applicant unfit and recommended a rating of 20 percent and separation with severance pay.  The PEB indicated that the applicant’s  separation was based on a disability resulting from an injury or disease received in the LOD as a direct result of armed conflict or caused by an instrumentality of war and incurred in the LOD during a period of war as defined by law.  The PEB indicated that the applicant's disability did result from a combat related injury as defined by Title 26, USC, Section 104.  The applicant concurred with the results of the PEB.

3.  The evidence of record shows the applicant was honorably discharged, on 13 August 2008, by reason of physical disability, under the provision of Army Regulation 635-40 and IAW NDAA 2008, due to physical disability with severance pay which was combat related.

4.  The regulation shows that the separation program designator (SPD) "JFO," as shown on the applicant’s DD Form 214, specifies the narrative reason for discharge as "disability, severance pay, non-combat related" and that the authority for discharge under this SPD is "Army Regulation 635-40 and ALARACT Message, dated 13 June 2008."  

5.  The applicant's condition was considered combat related; however, his SPD code and narrative reason are not consistent with the basis for his separation.  Therefore, the Board recommends that the applicant's records be corrected to show the SPD Code of "JFI" which is consistent with the basis for his separation. It would now be appropriate to change item 26 of his DD Form 214 to show an SPD of "JFI" and item 28 to show the narrative reason as "Disability, severance pay, Combat-Related."


BOARD VOTE:

____x___  ____x___  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  deleting the SPD Code of JFO from item 26 of the DD Form 214 and adding the SPD Code of "JFI"; and

	b.  deleting the current entry in item 28 of the DD Form 214 and adding the entry "Disability, Severance Pay, Combat Related."




      _______ _   __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.
ABCMR Record of Proceedings (cont)                                         AR20080014935



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ABCMR Record of Proceedings (cont)                                         AR20080014935



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