IN THE CASE OF:	

		BOARD DATE:	  4 February 2010

		DOCKET NUMBER:  AR20090015575 


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 his DD Form 214 be corrected to show the receipt of $76,221.60 in Disability Severance Pay and a Separation Program Designator (SPD) code of "JFI."

2.  The applicant states that these corrections are necessary due to changes directed by the National Defense Authorization Act of 2008 (FY 2008 NDAA). 

3.  The applicant provides copies of his DD Form 214; Infantry Center Orders 046-2227; a 2 April 2009 Infantry Center memorandum; a 20 February 2009 Army Physical Disability Agency letter; and a 25 June 2009 letter from the Defense Finance and Accounting Service (DFAS).

CONSIDERATION OF EVIDENCE:

1.  The applicant served on active duty in the Navy from 10 August 1981 through 18 December 1992 and in the Naval Reserve from 19 December 1992 through 19 December 1995.  He had a break in service from 20 December 1995 through 27 April 2005 when he enlisted in the Army National Guard.  

2.  The applicant was mobilized on 24 October 2005 and served in Kuwait/Iraq from 15 November 2005 through 15 November 2006.


3.  A 13 December 2007 Physical Evaluation Board (PEB) found the applicant to be physically unfit for continuation on active duty due to degenerative disc disease of the lumbar spine at a 10 percent disability level.

4.  On 29 February 2008, the applicant was discharged due to a physical disability with severance pay.  His DD Form 214 shows an SPD of JFL.  The monetary amount of his severance pay is not listed on the DD Form 214. 

5.  On 17 February 2009, a second PEB determined that the applicant's level of disability should have been 20 percent and adjusted his rating to reflect this level. It also specified that the disability was found to have been incurred in a combat zone or incurred during the performance of duty in combat-related operations.

6.  An Army Physical Disability Agency letter to the applicant, dated 20 February 2009, notified him of changes in law that recalculated the monetary amounts of physical disability severance pay based on the total number of years of service.

7.  An Infantry Center memorandum, dated 2 April 2009, requested the issuance of a DD Form 215 (Correction to the DD Form 214) to change the applicant's SPD code from JFL to JFI.

8.  On 25 June 2009, DFAS requested that the Army Review Boards Agency issue a DD Form 214 to show the applicant was paid $76,221.61 in disability severance pay.

9.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It establishes standardized policy for preparing and distributing the DD Form 214.  In pertinent part it states that:  
	
	a.  corrections to the DD Form 214 will be made on a DD Form 215; and 

	b.  the "REMARKS" block is used for Headquarters, Department of the Army mandatory entries when a separate block is not available.  When a Soldier receives separation/readjustment or non-disability severance pay (emphasis added) the type of pay and amount are to be entered here.  

10.  Military Personnel Message (MILPER MSG) 06-147 states that regulations regarding entries of severance pay on the DD Form 214 are inconsistent.  It was 

directed that when a Soldier receives separation/readjustment or severance pay (disability or non-disability) the "Gross" (not net) amount of pay will be entered at block 18 on the DD Form 214.

11.  The FY 2008 NDAA, which became Public Law 110-181, on 28 January 2008, authorized an enhancement of disability severance pay for members of the armed forces.  The law mandated that the Secretaries of Military Departments identify and certify members with a disability incurred in a line of duty in a combat zone tax exclusion area or incurred during performance of duty in combat-related operations as designated by the Secretary of Defense.  The determination of "incurred during performance of duty in combat-related operations" shall be made consistent with the criteria of the law.  This provision applies to members disability separated or retired as of 28 January 2008.  Military Departments shall ensure the appropriate severance pay is calculated in accordance with Title 10, U.S. Code, section 12, and is paid.

12.  As a result of disability separation changes directed by the FY 2008 NDAA, effective 8 March 2008 Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) was updated by replacing the JFL code with two more specific codes JFI (disability severance pay - combat related) and JFO (disability severance pay - non-combat related).  

DISCUSSION AND CONCLUSIONS:

1.  At the time of discharge, the correct SPD for a discharge due to a physical disability with severance pay was JFL.  However, shortly before the applicant's discharge there was a significant enhancement of benefits to which the applicant is entitled.  Shortly after his discharge, the changes in law and regulation necessitated splitting of the old JFL code to specify if a disability was combat related (JFI) or non-combat related (JFO).

2.  As the applicant was on active duty at the time the new law was passed the appropriate code for a discharge due to a combat related physical disability with severance pay is JFI.  Since this will result in a substantial enhancement of his rights and clarify his statue for benefits, it is appropriate to correct the DD Form 214 to show the SPD as JFI.

3.  While the amount of disability severance pay that the applicant initially received is not available to show a full correction, DFAS indicated he actually received $76,221.60.  Therefore, it is appropriate to correct the DD Form 214 to show he received disability severance pay in the amount of $76,221.60.


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 entry on the DD Form 214 and replacing it with "JFI"; and 

	b.  adding, at block 18 on the DD Form 214, the entry "Disability Severance Pay $76,221.60."




      _______ _   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)                                         AR20090015575





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ABCMR Record of Proceedings (cont)                                         AR20090015575



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