IN THE CASE OF:	  

		BOARD DATE:	  24 June 2010

		DOCKET NUMBER:  AR20090021590 


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, correction of his discharge orders and item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his disability was combat related.

2.  The applicant states, in effect, his formal Physical Evaluation Board (PEB) proceedings state his discharge was for medical reasons and has a "10c" clause with it for a combat related injury. 

3.  The applicant provides:

* DA Form 199 (PEB Proceedings)
* DD Form 214
* Discharge orders 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 25 March 2004.  He completed training as a human resources specialist.  

2.  On 22 October 2008, a formal PEB convened to determine his fitness for retention on active duty.  The PEB lists his disability as patellofemoral pain syndrome of the left knee.  The PEB states the applicant injured his left knee during week one of jump school practicing airborne falls.  The PEB proceedings show "10C" was awarded for injury to left knee during parachute training; incurred during ground week on military-unique parachute training equipment.  Item 10c of the DA Form 199 states the disability did result from a combat-related injury as defined in Title 26, U.S. Code, section 104.  Item 10d states the disability was not incurred in a combat zone or incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense in accordance with the National Defense Authorization Act (NDAA) 2008, section 1646.

3.  The PEB found the applicant physically unfit for continued service and recommended separation with severance pay and a combined rating of 10 percent.

4.  The applicant was honorably discharged with severance pay on 1 February 2009.  Item 28 of his DD Form 214 shows the entry "Disability, severance pay, non-combat related" and item 26 (Separation Code) shows the entry "JFO."

5.  The applicant submits Orders 331-0104, dated 26 November 2008, which state, in pertinent part, his scheduled date of separation is 1 February 2009 and under additional instructions the entries "d.  Disability resulted from a combat related injury as defined in Title 26, U.S. Code, section 104:  No" and "f.  Disability was 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, section 1646):  No."

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 the line of duty during a period of war.

7.  Title 26 (Internal Revenue Code) U. S. Code, section 104 states, in pertinent part, that for purposes of this subsection, the term “combat-related injury” means personal injury or sickness which is incurred as a direct result of armed conflict, while engaged in extra hazardous service, or under conditions simulating war; or which is caused by an instrumentality of war. 

8.  The Fiscal Year (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.
9.  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.

10.  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.  6 years in the case of a member separated for a disability incurred in the 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.  3 years in the case of any other member.

11.  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.

12.  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 JFI and JFO would replace SPD codes JFL and JEA.  The SPD code of JEB would also replace SPD code JEL.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests his discharge orders and narrative reason for separation be corrected to show his disability was combat related.

2.  The applicant sustained an injury to his left knee during parachute training.  The PEB determined he was physically unfit for further military service and recommended separation with entitlement to severance pay.

3.  Based on DOD guidance (for SPD purposes), in order for the applicant's injury to be categorized as "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 airborne training, 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 SPD's for each type of injury.  In the applicant's case, his 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 code JFO which then automatically dictated his narrative reason for separation as "non-combat."  Therefore, there is no basis for granting the applicant's request to amend item 
28 on his DD Form 214.

7.  The entry in item 10c of the applicant's DA Form 199 which states his disability did result from a combat-related injury as defined in Title 26, U.S. Code, section 104 (for internal revenue code purposes) is accepted as sufficient evidence on which to amend his discharge orders, dated 26 November 2008.  Therefore, these orders should be corrected to show the entry "Yes" in item d under additional instructions.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ___X____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by   deleting the entry "No" in item d of his discharge orders, dated 26 November 2008, and replacing it with "Yes."

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to amending item 28 on his DD Form 214.  




      _______ _   __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)                                         AR20090021590



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ABCMR Record of Proceedings (cont)                                         AR20090021590



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