BOARD DATE:	  February 18, 2010

		DOCKET NUMBER:  AR20090015157 


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 that her narrative reason for discharge be changed from physical disability, severance pay to a medical retirement in item 28 (Narrative Reason) of her DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 30 September 1991.

2.  The applicant states that her severance pay has been paid in full.

3.  The applicant provides a copy of her DD Form 214 for the period ending 30 September 1991 in support of her application.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Army National Guard on 30 December 1977.

2.  She was ordered to active duty on 6 December 1990 in support of Operation Desert Shield/Desert Storm.

3.  In July 1991, the applicant was evaluated by a medical evaluation board (MEBD) and was diagnosed as having left knee chondromalacia [softening and degeneration of the tissue underneath the kneecap] of the patella and retropatellar [painful result of physical and/or biomechanical changes to the knee joint) pain syndrome of the right knee without previous surgery.  The MEBD recommended referral to a physical evaluation board (PEB).

4.  On 22 August 1991, an informal PEB found the applicant unfit for military service due to left knee chondromalacia and chronic pain in the right knee with no loss of motion.  The PEB recommended that the applicant be separated with severance pay with a 10-percent disability rating.  The applicant concurred with the recommendations and waived a formal hearing of her case.

5.  The applicant was honorably discharged from active duty on 30 September 1991 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of physical disability with severance pay amounting to $11,383.20.  She completed 9 months and 25 days of active military service during this period.

6.  Item 25 (Separation Authority) of the applicant's DD Form 214 for the period ending 30 September 1991 shows the entry, "AR 635-40, PARA 4-24e(3)."  Item 26 (Separation Code) shows the separation program designator code of "JFL" for physical disability with severance pay.

7.  Item 28 of the applicant's DD Form 214 for the period ending 30 September 1991 shows the entry "physical disability with severance pay."

8.  The applicant was discharged from the Army National Guard on 30 September 1991 under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-26y, by reason of being medically unfit for retention standards.

9.  Army Regulation 635-40 governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability when the unfitness is of such a degree that a Soldier is unable to perform the duties of this office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.

10.  Army Regulation 635-5-1 (SPD Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for these stated reasons.  The regulation shows that the SPD code "JFL" as shown on the applicant’s DD Form 214 specifies the narrative reason for discharge as "disability, severance pay" and that the authority for discharge under this SPD code is Army Regulation 635-40, paragraph 4-24e(3).

11.  Army Regulation 635-5 (Separation Documents) establishes the policies and procedures for completion and distribution of the DD Form 214.  In pertinent part, it states that item 28 will list the narrative reason for separation based on regulatory or other authority and can be checked against the cross-reference table in Army Regulation 635-5-1.

12.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.  Section 1212 provides that a member separated under Section 1203 is entitled to disability severance pay.

13.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.

14.  Title 10, U.S. Code, section 1212(c), states that the amount of disability severance pay received shall be deducted from any compensation for the same disability to which the former member becomes entitled under any law administered by the Department of Veterans Affairs (VA).  Thus, VA compensation may be withheld as an offset on a monthly basis until the total amount of military severance pay has been recovered.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's statement that her severance pay has been paid in full is acknowledged.  However, this does not serve as a basis to change the reason for discharge to show she was medically retired.  Medical retirement is dependent on the percentage of disability granted by a PEB and not tied to recoupment of disability severance pay by the VA.

2.  An informal PEB found the applicant unfit for military service for left knee chondromalacia and chronic pain in her right knee at a 10-percent combined disability rating.  As a result she was discharged from active duty under the provisions of Army Regulation 635-40, paragraph 4-24e(3), due to disability with entitlement to severance pay.

3.  There is insufficient evidence to show the applicant's disability was improperly rated by the PEB or that her separation with severance pay was not in compliance with law and regulation.

4.  Although the applicant contends that she should have been medically retired, she has provided no evidence which shows that her disability processing was in error or unjust or that her condition was improperly evaluated such as to warrant a rating higher than 10 percent.  Therefore, it has been determined that the applicant's discharge by reason of physical disability with entitlement to severance pay was proper and correct at the time and there is no basis to change her discharge to a medical retirement.

5.  In accordance with the preparation instructions for item 28 of the DD Form 214, the narrative reason for separation is taken from Army Regulation 635-5-1.  Therefore, the correct narrative reason for separation as provided in Army Regulation 635-5-1 was properly entered on her DD Form 214.

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)                                         AR20090015157



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ABCMR Record of Proceedings (cont)                                         AR20090015157



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