IN THE CASE OF:	

		BOARD DATE:	  29 April 2010

		DOCKET NUMBER:  AR20090016405 


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 item 28 (Narrative Reason for Separation) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his disability was combat-related.

2.  The applicant states that his DD Form 214 shows his disability was non-combat related.

3.  The applicant provides copies of Orders 153-0256 and his DD Form 214.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) in Raleigh, North Carolina, on 24 October 2006.  He completed training as a motor transport operator and was transferred to Fort Benning, Georgia.  

2.  On 11 May 2009 a Physical Evaluation Board (PEB) convened to determine his fitness for retention on active duty.  The PEB lists his disability as left ankle instability due to a fractured left navicular bone and numerous torn tendons and ligaments.  The PEB Proceedings show that his injury was:

* Incurred during an airborne operation in March 2007



* Not due to intentional misconduct, willful negligence, or unauthorized absence
* Incurred or aggravated while entitled to basic pay
* Incurred in the line of duty in the time of national emergency
* The proximate result of performing duty 
* The result of a combat-related injury as defined in Title 10, U.S. Code, section 104 (10 USC 104) and for purposes of 10 USC 10216(G)
* Not incurred in a combat zone or incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense (NDAA 2008 Sec 1646).

3.  The PEB found the applicant physically unfit for continued service and recommended separation with severance pay and a combined rating of 
20 percent.

4.  He was honorably discharged with severance pay on 17 August 2009.  Item 28 of his DD Form 214 show the entry "Disability, Severance Pay, 
Non-Combat Related" and item 26 (Separation Code) shows the entry "JFO."

5.  The applicant submits Orders 153-0256, dated 2 June 2009, which read "Disability resulted from a combat related injury as defined in 26 USC 104."

6.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states 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.

7.  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.  Military Departments shall ensure the appropriate severance pay is calculated in accordance with Title 10, U.S. Code, section 1212.  

8.  Title 10, U.S. Code, section 1212(a)(1) states a member separated for disability with entitlement to severance pay shall have his pay computed by multiplying the member's years of service using a number of calculations.


9.  Title 10, U.S. Code, section 1212(c)(1) states the minimum years of service of a member for purposes of subsection (a)(1) shall be as follows:

		a.  Six years in the case of a member separated for a disability incurred in line of duty in a combat zone (as designated by the Secretary of Defense) or incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense or

		b.  Three years in the case of any other member.

10.  The Under Secretary of Defense memorandum, dated 13 March 2008, established four new Separation Program Designator (SPD) codes, one for standard use and one for use by the Disability Evaluation System (DES) Pilot 
"Enhanced" program.  The new SPD codes reflect the categorization of combat-related disability directed by Public Law 101-181 and will be utilized on the DD Form 214 of all service members with disabilities incurred in a combat-related operation.

11.  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 DES Pilot Program, implements new SPD codes for the disability related provisions of the FY 2008 NDAA and the DES Pilot Program.  It 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.  

		a.  SPD Code "JFI" for disability, severance pay, combat-related, is used for discharge resulting from physical disability with combat-related severance pay and entitlement.

		b.  SPD Code "JFO" for disability, severance pay, non-combat related, is used for discharge resulting from physical disability with non-combat related severance pay and entitlement.

		c.  SPD Code "JEA" for disability, severance pay, non-combat related (Enhanced), is used for discharge resulting from physical disability with combat-related severance pay and entitlement.

		d.  SPD Code "JEB" for disability, severance pay, non-combat related, is used for discharge resulting from physical disability with non-combat related severance pay and entitlement.


DISCUSSION AND CONCLUSIONS:

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

2.  The applicant sustained an injury to his left ankle during an airborne operation at Fort Benning, Georgia.  The PEB determined he was physically unfit for further military service and recommended separation with entitlement to severance pay. 

3.  Based on DOD guidance, in order for the applicant's injury to be a "Yes," the injury must have occurred or been sustained during combat or in a combat zone, otherwise the injury is categorized as non-combat related.  This determination pertains to members being discharged with severance pay.

4.  When the FY 2008 NDAA specified potential benefits for those being medically separated with severance pay, four new SPD codes were created.  The applicant's injury, sustained during an airborne operation, is considered hazardous duty and/or simulation of war.  

5.  Under the 2008 NDAA, in order to differentiate injuries and establish specific entitlements to certain programs, DOD established specific SPDs for each type of injury.  In the applicant's case, his injury occurred in line of duty and it was caused by an instrumentality of war.  However, the injury did not occur in a combat zone nor was it incurred during the performance of duty in combat-related operations.  He was discharged as a result of a disability that did not occur in a combat zone which is correctly shown on his DD Form 214.

6.  The applicant was appropriately assigned SPD "JFO" which then automatically dictated his narrative reason for separation as "non-combat."

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)                                         AR20090016405





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ABCMR Record of Proceedings (cont)                                         AR20090016405



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