IN THE CASE OF:	  

		BOARD DATE:	  17 February 2010

		DOCKET NUMBER:  AR20090012834 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was discharged because of a combat-related event instead of a non-combat related event.  

2.  The applicant states that he believes his event was combat related because the Fort Polk, LA, Finance/Transition office told him that the incident was incorrectly marked on his DD Form 214.

3.  The applicant did not provide any additional documentary evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he enlisted in the Regular Army (RA) for a period of 3 years on 28 September 2001.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Infantryman).  He also completed the Basic Airborne Course, executed a 3-year reenlistment on 13 December 2003 and a 5-year reenlistment on 8 November 2005.  He also attained the rank of sergeant (SGT/E-5 and he was assigned to the 1st Battalion, 509th Infantry, Fort Polk. 

2.  The applicant’s records also show he served in Iraq from 11 May 2003 to 12 July 2004.

3.  The applicant's Narrative Summary, dated 12 March 2008, shows he sustained a closed, non-comminuted toe fracture and a right knee bone bruise during a nighttime combat tactical airborne exercise at Fort Polk, in May 2006.  It also shows the following:  

	a.  He was initially treated at the emergency room where a foot X-ray noted a tiny avulsion fragment from the base of the distal phalanx.  He followed up with several visits to the local hospital clinic, underwent several X-rays, and was told to wear his military boots as much as possible to keep the toe from flexing.

	b.  He made several follow-up visits and was told his mild discomfort was normal and that healing would occur.  He recalled that his right knee was being more of an issue at that point.  A right knee X-ray was subsequently taken and revealed an abnormal signal in proximal aspects of the fibula, most likely a bone bruise.  A bone scan was also taken and revealed an area of uptake in the right distal femur and right fibular head with similar changes on the left concluding that these changes were consistent with repeated stress.

	c.  A 7-week post injury X-ray of the right toe revealed no evidence of healing of the fracture.  He was referred to the Podiatry Clinic in August 2006.  However, a 12-week post injury right foot X-ray showed apparent fracture healing but noted some minimal osteophyte formation at the first MPJ (metatarsal phalangeal joint) as well as a slight flattening of the first metatarsal head consistent with stress or prior trauma.  He was prescribed sole stiffeners to reduce flexing and thereby reduce toe pain.  A series of three cortisone injections to the right great toe distal phalanx were administered between October 23006 and January 2007 and in February 2007, the Podiatrist diagnosed him with right toe interphalangeal joint bone spur.  

	d.  In late may 2007, he underwent fusion of the right great toe.  However, post-operation course was complicated by a toe wound dehiscence and cellulitis.  He noted improvement; however, he had limited range of motion.  The applicant subsequently appeared before an MOS Medical Retention Board that recommended his referral to the Army Physical Disability Evaluation System (PDES).

4.  On 4 March 2008, the applicant underwent a thorough medical examination that focused on his feet and knees.  The right great toe was determined to be in mild valgus rotation with limited range of motion, particularly in flexion (20 degrees).  His knee examination showed normal knees with no right knee swelling, effusion, and with a normal range of motion.  The attending physician indicated a diagnosis of joint pain localized right first metatarsophalangeal (MTP) joint and Hallux Limitis right great toe, both of which failed medical retention standards, and metatasalgia and right knee joint pain, both of which met medical retention standards.  The attending physician concluded that the applicant should be referred to a Medical Evaluation Board (MEBD). 

5.  On 12 March 2008, an MEBD convened at Bayne Jones Army Community Hospital, Fort Polk, LA, and after consideration of clinical records, laboratory findings, and physical examinations, the MEBD found that the applicant had the following medically unacceptable conditions:  joint pain, localized right first MTP joint, and Hallux Limitus, right great toe.  He also had the medically acceptable conditions of metatasalgia, right knee joint pain, and occupational problems.  The recommendation was that he be referred to a Physical Evaluation Board (PEB).  The applicant agreed with the MEBD’s findings and recommendation and indicated that he did not desire to continue on active duty. 

6.  On 21 March 2008, an informal PEB convened at Fort Sam Houston, TX, and found the applicant's conditions prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit due to Hallux Regidus following first toe arthrodesis after developing a bone spur after a complicated healing process of a closed fracture of the distal phalanx.  His right toe did not touch the ground when standing.  The PEB rated him under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) and he was granted a 10-percent disability rating for codes 5003 and 5281 (Hallux Rigidus).  The PEB also considered his medical conditions of metatasalgia, right knee joint pain, and occupational problems.  However, these conditions were not found to be unfitting and therefore they were not rated.  The PEB recommended that the applicant be separated with entitlement to severance pay.  His rating was awarded for an injury that did not occur in a combat zone or during combat related operations.

7.  Item 10 of the DA Form 199 PEB Proceedings shows the following entry:  If retired because of disability, the Board makes the recommended finding that: 

	a.  The Soldier’s retirement is based on disability from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurring in line of duty during a period of war as defined by law. 

	b.  Evidence of record reflects the Soldier was not a member or obligated to become a member of an armed force or a Reserve thereof, or the NOAA or the USPHS on 24 September 1975.

	c.  The disability did result from a combat related injury as defined in 26, U.S. Code (USC), section 104. 
   d.  The PEB also added item 10d to show "No.  Disability was not incurred in a combat zone or incurred during performance of duty in combat-related operations by the Secretary of Defense (10 USC 1212 – NDAA 2008 Sec 1646)." 

8.  On 26 March 2008, the applicant concurred with the PEB’s finding and recommendation, waived his right to a formal hearing, and elected to receive disability severance pay.  He and his counselor authenticated the DA Form 199 and placed their signatures in the appropriate places.  Additionally, the DA Form 199 shows the following entry as an indication of proper counsel and the statement is signed by the applicant and his representative:

I have informed the Soldier of the findings and recommendations of the PEB and explained to him the result of the findings and recommendations and his legal rights pertaining thereto.  The Soldier has made the election(s) shown above.

9.  On 20 May 2008, the applicant was honorably discharged in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) and the 2008 National Defense Authorization Act (NDAA) by reason of physical disability with entitlement to severance pay, Non-combat related.  The DD Form 214 he was issued shows he was awarded severance pay.  Additionally, item 26 (Separation Code) of this form shows the entry "JFO." 

10.  Title 10, U.S. Code (USC), section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating at least 30 percent.  Title 10, USC, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rating at less than 30 percent.  

11.  The National Institute of Health of the U.S. Department of Health defines Hallux Rigidus as a disorder of the joint located at the base of the big toe.  It causes pain and stiffness in the big toe, and with time it gets increasingly harder to bend the toe. "Hallux" refers to the big toe, while "rigidus" indicates that the toe is rigid and cannot move.  Hallux Rigidus is actually a form of degenerative arthritis (a wearing out of the cartilage within the joint that occurs in the foot and other parts of the body).  Because "Hallux Rigidus" is a progressive condition, the toe's motion decreases as time goes on.  In its earlier stage, motion of the big toe is only somewhat limited—at that point, the condition is called "Hallux Limitus." But as the problem advances, the toe's range of motion gradually decreases until it potentially reaches the end stage of "Rigidus"— where the big toe becomes stiff, or what is sometimes called a "frozen joint."  Other problems are also likely to occur as the disorder progresses.  Early signs and symptoms include pain and stiffness in the big toe during use (walking, standing, bending, etc.), pain and stiffness aggravated by cold, damp weather, difficulty with certain activities (running and squatting), and swelling and inflammation around the joint.

12.  Army Regulation 635-40 establishes the Army PDES sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501.  If the MEBD determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.  

13.  Army Regulation 635-40 states the disability must have resulted from injury or disease received in line of duty as a direct result of armed conflict and which itself renders the Soldier unfit.  A disability may be considered a direct result of armed conflict if it was incurred while the Soldier was engaged in armed conflict or in an operation or incident involving armed conflict or the likelihood of armed conflict; if a direct causal relationship exists between the armed conflict or the incident or operation and the disability; or if the disability which is unfitting was caused by an instrumentality of war and was incurred in line of duty during a period of war.  A determination that a disability was caused by an instrumentality of war and incurred in line of duty will be appropriate only when it is also determined that the disability so incurred in itself renders the member physically unfit and was incurred during one of the periods of war as defined by law.

14.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD.  DODI 1332.39 and Army Regulation 635-40, Appendix B, modify those provisions of the rating schedule inapplicable to the military and clarify rating guidance for specific conditions.  Ratings can range from 0 to 100 percent, rising in increments of 10 percent.  

15.  Army Regulation 635-40 states the phrase “instrumentality of war” refers to a device primarily designed for military service and intended for use in such service at the time of the occurrence of the injury.  It may also be a device not designed primarily for military service if use of or occurrence involving such a device subjects the individual to a hazard peculiar to military service.  This use or occurrence differs from the use or occurrence under similar circumstances in civilian pursuits.
16.  Appendix D of Army Regulation 635-40 provides for instructions for completion of the DA Form 199 and states the following:

	a.  Block 9:  Select recommendations for disposition of the Soldier from the following statements: "Permanently retired from the service"; "Placed on the TDRL (Temporary Disability Retired List) with reexamination during (month and year)"; "Separated from the military service without entitlement to disability benefits from the service"; "Separate from the service with severance pay if otherwise qualified"; "Retained on the TDRL with reexamination during (month and year)"; "Revert to retired status"; or Other (specify).  

	b.  Item 10a:  Make the entry according to the provisions of paragraph 4–19j. Make the entry in all cases other than those on the TDRL although the entry pertains only to Soldiers who will be retired.  For a Soldier on the TDRL, make an entry only if the DA Form 199 placing the Soldier on the TDRL did not indicate a finding.

	c.  Item 10b:  Make the entry in all cases even though block 10b addresses only Soldiers who will be retired.  Check "was" if, on 24 September 1975, the individual was a member of the armed force of any country or Reserve Component (RC) of the armed force; the National Oceanic and Atmospheric Administration (NOAA) (formerly the Coast and Geodetic Survey); the United States Public Health Service (USPHS); or under a binding written commitment to become such a member.  For a Soldier on the TDRL, make the proper entry only if the DA Form 199 placing him on the TDRL after 24 September 1975 does not indicate a finding.

	d.  Item 10c:  Make the entry in all cases even though block 10c addresses only Soldiers who will be retired.  Refer to paragraph 4–19k and the Glossary to decide which block to check.

17.  The Glossary of Army Regulation 635-40 makes the following definitions:

	a.  A combat related injury is a personal injury or sickness that a Soldier incurs under one of the following conditions:  as a direct result of armed conflict; while engaged in extra-hazardous service; under conditions simulating war; or which is caused by an instrumentality of war.

	b.  Instrumentality of war is a device designed primarily for military service and intended for use in such service at the time of the occurrence of the injury.  It may also be a device not designed primarily for military service if use of or occurrence involving such a device subjects the individual to a hazard peculiar to military service.  This use or occurrence differs from the use or occurrence under similar circumstances in civilian pursuits.  There must be a direct causal relationship between the use of the instrumentality of war and the disability and the disability must be incurred incident to a hazard or risk of the service.

18.  Army Regulation 635-5-1 (Separation Program Designator Codes) states that the separation program designator (SPD) codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty. The primary purpose of SPD codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of the Department of Defense and the Military Services to assist in the collection and analysis of separation data.  

19.  The 2008 NDAA which became Public Law 110-181, on 28 January 2008, authorizes, in pertinent part, the retirement or separation for disability of members, under provisions applicable to members on active duty for more than 30 days, if the member has six months or more of active service and the disability was not noted at the time of the member's entrance into active duty, unless medical evidence or judgment warrants a finding that the disability existed before the member's entrance on active duty.

20.  All Army Activity 147/2008, dated 13 June 2008, governs the implementation of new Separation Program Designator (SPD) codes for disability-related provisions of the NDAA 2008 (Public Law 110-181).  DOD Memorandum, dated 13 March 2008, directed the implementation of four new SPD Codes pertaining to the ratings of conditions and the calculation of disability severance pay.  SPD Code "JFO" identifies Soldiers separated under chapter 4 of Army Regulation 635-40 for non-combat related disability with entitlement to severance pay.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his narrative reason for separation should be corrected to show his disability was combat-related. 

2. The applicant sustained a toe injury during a tactical jump at Fort Polk.  He underwent a thorough medical evaluation that resulted in a diagnosis of the medically condition of "Hallux Regidus."  Following first toe arthrodesis he developed a bone spur that complicated the healing process of a closed fracture of the distal phalanx.  The PEB determined he was physically unfit for further military service and recommended separation with entitlement to severance pay. He was counseled and concurred with the PEB's findings and recommendations and, accordingly, he was discharged and received severance pay. 

3.  The applicant's injury, sustained during an airborne operation, is considered hazardous duty and/or simulation of war and would otherwise qualify a retiree for Combat Related Specialty Compensation (CRSC).  In this context, the injury would be a combat-related injury.  However, the applicant is neither a retiree nor is he qualified for CRSC under current rules for that program.

4.  The PEB determined that item 10d of the DA Form 199 should state "No."  This determination is relatively new and was made subsequent to the 2008 NDAA.  In order for his specific injury to be a "Yes," his injury must have occurred/sustained during combat or in a combat zone.  This determination pertains to members being discharged with severance pay.  In this context the applicant's injury is non-combat related.  

5.  When the 2008 NDAA specified this new potential benefit for those being medically separated with severance pay, four new SPD codes were created.  The applicant was appropriately assigned SPD "JFO" which then automatically dictated his narrative reason for separation as "non-combat." 

6.  The applicant’s physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB.  There is no error or injustice in this case.  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 did not submit evidence that would satisfy this requirement.  In view of the circumstances in this case, there is insufficient evidence to grant him the requested relief. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x____  ____x____  ____x____  DENY APPLICATION







BOARD DETERMINATION/RECOMMENDATION:

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.



      _______ _   _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)                                         AR20090012834



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