IN THE CASE OF:	  

		BOARD DATE:	  13 January 2011

		DOCKET NUMBER:  AR20100015363 


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 the narrative reason for discharge (Item 28) on his DD Form 214 (Certificate of Release or Discharge from Active Duty). In effect, he is requesting correction of Item 26 (Separation [SPD] Code).

2.  The applicant states the physical disability evaluation system (PDES) determined his post traumatic stress disorder (PTSD) was combat-related.

3.  The applicant provides:

* his DD Form 214 with effective date 20080605
* Department of Veterans Affairs (DVA) letter dated 19 April 2010
* his DD Form 199 (Physical Evaluation Board (PEB) Proceedings
* DA Form 3947 (Medical Evaluation Board [MEB] Proceedings)
* MEB Narrative Summary (NARSUM)

4.  The applicant provides, under separate cover:

* DVA letter of support for his request, dated 2 July 2010
* Orders 079-0009, Installation Management Command, Military Personnel Division, Fort Lewis, WA, dated 19 March 2008, discharging him
* duplicates of documentation provided above
* DD Form 2808 (Report of Medical Examination), dated 20071217
* pages 2 and 3 of DD Form 2807-1 (Report of Medical History)


CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he enlisted in the Regular Army (RA) on 29 May 1992 and held military occupational specialty (MOS) 19D (Cavalry Scout).  He served through multiple reenlistments or extensions and attained the rank/grade of staff sergeant (SSG)/E-6.  The records also show:

* he served in Bosnia during the period 19911104-19920528
* he served in Iraq during the period 20030405-20031021

2.  While in Iraq, the applicant participated in combat operations, including cordon and search, combat patrols and ambushes, and was awarded a Bronze Star Medal with "V" Device.  As a result of his duties, he began experiencing sleep problems and anxiety issues.

3.  After returning from Iraq, the applicant was reassigned in March/April 2004 on a permanent change of station (PCS) move to recruiting duty.  His emotional problems continued and he became depressed and began abusing alcohol.  He finally checked-in to a Department of Veterans Affairs (DVA) hospital in May 2006 and was admitted for PTSD, major depression and alcohol abuse.  He was treated with antidepressants and released to outpatient care after 12 days.

4.  The applicant was relieved from recruiting duty and transferred to Fort Lewis, WA and assigned to A Troop, 8th Squadron, 1st Cavalry Regiment.  Symptoms continued and, in September 2007, he reported to Army Mental Health Services and was prescribed sedatives and antidepressants.  He was unable to function as a cavalry scout and was referred to the PDES by his treating physician.

5.  On 5 December 2007, the applicant underwent a physical and mental evaluation.  He was diagnosed with:

Axis I:  Post-traumatic stress disorder, chronic, moderate, as manifested by  exposure to numerous traumatic events involving numerous deaths and serious injuries and response of intense horror which are re-experienced by recurrent and intrusive distressing recollections of the events, distressing dreams of the events, feelings as if the traumatic events were recurring, intense psychological and physiological reactivity to exposure to events which resemble aspects of the traumas, persistent avoidance of stimuli associated with the trauma including avoidance of activities and places that arouse 

recollections of the trauma, markedly diminished interest and participation in significant activities, feelings of  detachment and estrangement from others, restricted range of affect, persistent symptoms of increased arousal including insomnia, irritability, difficulty concentrating, hypervigilance and exaggerated startle response.

6.  On 3 January 2008, an MEB convened at Madigan Army Medical Center, Fort Lewis, WA, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB diagnosed the applicant as suffering from PTSD and recommended he be given a PEB.  The applicant concurred.

7.  On 12 February 2008, an informal PEB convened at Fort Lewis and found the applicant's condition prevented him from performing the duties required of his grade and specialty and determined he was physically unfit due to his condition.  The PEB rated him under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) and, as shown in items 8a, 8b, and 8g (Disability Description, VA Code, Percentage), he was granted the following:

* Code 9411, PTSD, onset following a combat tour in Iraq April-October 2003, 10%

It was determined his PTSD was based on injury or disease received in the line of duty as a direct result of armed conflict or caused  by an instrumentality of war and incurred in the line of duty during a period of war as defined by law.

8.  The informal PEB found the applicant unfit and recommended he be separated with disability severance pay based on his disability rating of 10 percent.  The applicant concurred.

9.  On 5 June 2008, the applicant was honorably discharged in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of [physical] disability with severance pay of $101,078.40. Item 26 (Separation Code) of his DD Form 214 shows the entry "JFL."

10.  Army Regulation 635-40 (6 February 2006) establishes the Army PDES and 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/her office, grade, rank, or rating.  It states that 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 and a direct causal relationship exists between the armed conflict or the incident or operation and the disability
* the unfitting disability was caused by an instrumentality of war and was incurred in line of duty during a period of war as defined by law

11.  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
* Separated from the service with severance pay if otherwise qualified
* Retained on the TDRL with reexamination during (month and year)
* Revert to retired status
* 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.  

	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 NOAA; the USPHS; or under a binding written commitment to become such a member.  

	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.

12.  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 "JFL" Separation Code is the correct code for Soldiers being separated under paragraph 4-24B(3) of Army Regulation 635-40 for permanent disability.

13.  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 the 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 not disability separated or retired as of 28 January 2008.  

14.  Title 26 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.

15.  All Army Activity message 147/2008, dated 13 June 2008, governs the implementation of new 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.  The codes are:

* Code JFI, Disability, Severance Pay, Army Regulation 635-40, Chapter 4, Combat Related
* Code JFO, Disability, Severance Pay, Army Regulation 635-40, Chapter 4, Non-Combat Related
* Code JEA, Disability, Severance Pay, Army Regulation 635-40, Chapter 4, Combat Related (Enhanced)
* Code JEB, Disability, Severance Pay, Army Regulation 635-40, Chapter 4, Non-Combat Related (Enhanced)

The SPD codes JFI and JFO replace SPD code JFL, and the SPD codes JEA and JEB replace SPD code JEL. 

16.  The applicant provided a letter, dated 2 July 2010, from the DVA to the Army Review Boards Agency.  The letter states the applicant was discharged with disability severance pay during the implementation of the provisions of 38 CFR 3.700(a)(3); however, because he was given the old SPD code of JFL instead of 

the new code of JFI (or JEA), the DVA is forced to recoup his disability severance pay prior to awarding benefits.  The DVA urges this Board to correct the applicant's SPD code on his DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests correction of his SPD code.  His DD Form 214 shows an SPD code of JFL.

2.  Under the 2008 NDAA, in order to differentiate injuries and establish specific entitlements to certain programs administered by the DVA, the DOD established more specific SPDs for each type of injury/illness.  In the applicant's case, his disabling PTSD condition occurred in line of duty in a combat zone, and was caused by combat or an instrumentality of war.  He should have been awarded SPD code JFI, which replaced JFL effective 28 January 2008.

3. The applicant's SPD code should be corrected.

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 correcting Item 26 on his DD Form 214 to read "JFI."




      _______ _   __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)                                         AR20100015363





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ABCMR Record of Proceedings (cont)                                         AR20100015363



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