IN THE CASE OF:	  

		BOARD DATE:	    4 January 2011

		DOCKET NUMBER:  AR20100018945 


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 (Certificate of Release or Discharge from Active Duty) be corrected show that his narrative reason for discharge was “Disability – Combat Related.”

2.  The applicant states that his DD Form 214 incorrectly reflects that his disability was non-combat related; however, his separation documents indicate it was combat-related. 

3.  The applicant provides:

* a copy of his DD Form 214
* a copy of his separation orders
* a copy of his Physical Evaluation Board (PEB) Proceedings

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Georgia Army National Guard on 18 March 2009 for a period of 8 years.  He was ordered to active duty for training on 23 June 2009 and was transferred to Fort Sill, Oklahoma to undergo his basic training.

2.  On 26 August 2009, while still in basic training, he was in a 5-ton truck that rolled over and injured his wrist.  

3.  On 21 May 2010, a PEB determined that he was physically unfit and recommended a 10% disability rating.  The PEB also determined that 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 (as reflected in item 10 of his DA Form 199 (Physical Evaluation Board (PEB) Proceedings)). 

4.  On 15 June 2010 he was honorably discharged under the provisions of Army Regulation 635-40, chapter 4, due to disability with severance pay – non-combat related.  He had served 1 year, 2 months and 28 days of total active service.  The DD Form 214 he was issued shows he was awarded severance pay.  Additionally, item 26 (Separation Code) of this form shows the entry "JFO." 

5.  The applicant’s discharge orders indicate that his disability resulted from a combat-related injury as defined in 26 USC 104.

6.  Title 10, U.S. Code (USC), section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating at least 30 percent.  Title 10, USC, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rating at less than 30 percent.

7.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (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 office, grade, rank, or rating.  It provides, in pertinent part, that a combat-related injury is a personal injury or sickness that a Soldier incurs under one of the following conditions:  as a direct result of armed conflict; while engaged in extra-hazardous service; under conditions simulating war; or which is caused by an instrumentality of war.  Instrumentality of war is a device designed primarily for military service and intended for use in such service at the time of the occurrence of the injury.  It may also be a device not designed primarily for military service if use of or occurrence involving such a device subjects the individual to a hazard peculiar to military service.  This use or occurrence differs from the use or occurrence under similar circumstances in civilian pursuits.  There must be a direct causal relationship between the use of the instrumentality of war and the disability and the disability must be incurred incident to a hazard or risk of the service.

8.  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. 

9.  The 2008 National Defense Authorization Act (NDAA) which became Public Law 110-181, on 28 January 2008, authorizes, in pertinent part, the retirement or separation for disability of members, under provisions applicable to members on active duty for more than 30 days, if the member has six months or more of active service and the disability was not noted at the time of the member's entrance into active duty, unless medical evidence or judgment warrants a finding that the disability existed before the member's entrance on active duty.

10.  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.  SPD Code "JFO" identifies Soldiers separated under chapter 4 of Army Regulation 635-40 for non-combat related disability with entitlement to severance pay.

DISCUSSION AND CONCLUSIONS:

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

2.  The applicant sustained a wrist injury during a military truck accident in basic training at Fort Sill.  The PEB determined he was physically unfit for further military service and recommended separation with entitlement to severance pay. Accordingly, he was discharged and received severance pay. 

3.  The applicant's injury, sustained during training, was determined to be caused by an instrumentality of war (the truck). 

4.  The PEB determined that item 10d of the DA Form 199 should state "No."  This determination is relatively new and was made subsequent to the 2008 NDAA.  In order for his specific injury to be a "Yes," his injury must have occurred/been sustained during combat or in a combat zone.  This determination pertains to members being discharged with severance pay.  In this context, the applicant's injury is non-combat related.  

5.  When the 2008 NDAA specified this new potential benefit for those being medically separated with severance pay, four new SPD codes were created.  The applicant was appropriately assigned SPD "JFO" which then automatically dictated his narrative reason for separation as "non-combat." 

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  In view of the circumstances in this case, there is insufficient evidence to grant him the requested relief. 

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)                                         AR20100018945





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100018945



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1