IN THE CASE OF:	  

		BOARD DATE:	  8 March 2011

		DOCKET NUMBER:  AR20100021017 


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, amendment to Item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to include the entry, "combat-related."

2.  He states he was shot on the right side of his chest on 3 June 1993 during a live fire night training accident.  He was medically retired with a 40 percent (%) disability rating percentage because of that gunshot wound.  He is requesting a DD Form 214 to state "combat-related" since it was training that simulated war and an instrumentality of war.  He just recently discovered he would qualify for combat-related special compensation (CRSC) if his DD Form 214 states "combat-related."

3.  He provides:

* a DA Form 3947 (Medical Evaluation Board (MEB) Proceedings), dated
2 August 1996
* a DA Form 3349 (Physical Profile), dated 5 May 1994
* an addendum addressed to the President, Physical Evaluation Board (PEB), dated 23 September 1994
* a DA Form 199 (PEB Proceedings), dated 18 October 1994
* Orders D220-9, issued by U.S. Total Army Personnel Command, Alexandria, VA, dated 15 November 1994, retiring him by reason of permanent physical disability, effective 13 December 1994
* his DD Form 214 for the period ending 13 December 1994
* a copy of pages 26 and 27 of the Federal Benefits for Veterans, Dependents, and Survivors booklet, chapter 2 concerning CRSC

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 17 June 1991.  He was discharged from the USAR DEP on 1 June 1992 and he enlisted in the Regular Army on 2 June 1992 for 4 years in pay grade E-2.  He completed training and he was awarded military occupational specialty (MOS) 11B (Infantryman).

3.  A DA Form 2173 (Statement of Medical Examination and Duty Status) shows he was admitted to the Madigan Army Medical Center, Tacoma, WA, with a gunshot wound to the abdomen during a night fire exercise on 3 June 1993.

4.  In a memorandum to the PEB Liaison Officer, dated 28 October 1993, the applicant's commander stated the applicant was critically injured during a live fire exercise in June 1993.  The accident occurred due to no fault of the applicant and a subsequent investigation revealed the accident was due to no fault of any of the participants in the live fire exercise.  The applicant's injuries remain of such a state and nature that would prohibit him from rendering useful service to the Army in virtually any capacity.

5.  On 2 August 1994, an MEB convened and considered the applicant's diagnoses of status post-gunshot wound to the right throacoabdominal region; status post-liver retrohepatic vena cava and diaphragmatic injuries secondary to diagnosis number one; chronic chest wall pain and weakness secondary to diagnosis without sequelae; and chronic back pain, a foreign body lodged in the L1 vertebral body from a gunshot wound under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  The MEB recommended the applicant be referred to a PEB.  The board noted the applicant did desire to continue on active duty under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  The findings and recommendations of the MEB were approved on 2 August 1994.  The applicant concurred with the findings and recommendations of the MEB on 5 August 1994.

6.  On 5 August 1992, he was given a physical profile with a PULHES of 442111 for chronic right chest wall and lower back pain, easy fatigue and shortness of breath, and right leg pain with exertion.  His assignment limitations were no crawling, stooping, running, jumping, marching, or standing for long periods and no mandatory strenuous physical activity.

7.  On 15 August 1994, an informal PEB convened and considered the applicant's disabilities.  The PEB found the applicant unfit to perform the duties required of his rank and MOS and recommended permanent retirement with a combined 20% disability rating with severance pay.  

8.  The applicant did not concur with the findings and recommendation of the PEB on 29 August 1994 and requested a formal hearing.  

9.  On 18 October 1994, an informal PEB convened and considered the applicant's disabilities.  The PEB found the applicant unfit to perform the duties required of his rank and MOS and recommended permanent retirement with a 40% disability rating percentage.  The PEB also advised that he should contact a Department of Veterans Affairs (VA) counselor to learn about available benefits since he had a service-connected disability.  The applicant concurred with the findings and recommendation of the PEB on 18 October 1994.

10.  In Item 10 (If Retired Because of Disability, the Board Makes the Recommended Finding That) of his DA Form 199 the PEB stated the applicant's retirement was based on a disability for injury received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurring in the line of duty during a period of war as defined by law and the disability did result from a combat-related injury as defined in Title 26, U.S. Code, section 104.

11. On the same day he concurred with the findings and recommendations of the PEB.

12.  On 13 December 1994, he was honorably retired from active duty in pay grade E-4, under the provisions of Army Regulation 635-40, paragraph 4-24b(1), by reason of permanent physical disability.  He completed of 2 years, 6 months, and 12 days of net active service 

13.  Army Regulation 635-40 establishes the Army physical disability evaluation system 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.  Paragraph 4-19k(b)(2) states disability pay is awarded by reason of combat-related injury from performing extrahazadous service even if not directly engaged in combat and conditions simulating war, including but not limited to, performance of tactical exercises.

14.  Army Regulation 635-40, then in effect, paragraph 4-24b(1) stated that upon final decision of the U.S. Army Physical Disability Agency (USAPDA), an individual would be issued retirement orders or other disposition instructions for permanent retirement for disability.  There were no provisions under the regulation for citing "combat-related" as a narrative reason for separation on a DD Form 214.  Appendix C-13b stated the VA made its own decision concerning entitlement to disability compensations based on the statutes and regulations which governed its operations.

15.  The VA Federal Benefits for Veterans, Dependents, and Survivors booklet, chapter 2 (Service-Connected Disabilities), states disability compensation is a monetary benefit paid to veterans who are disabled by an injury that was incurred or aggravated during active military duty.  Chapter 2 also states CRSC provides tax-free monthly payments to eligible retired veterans with combat-related injuries.  With CRSC, veterans can receive both their full military retirement pay and their VA disability compensation if the injury is combat-related.  Eligible veterans with combat-related injuries must meet all of the following criteria to apply for CRSC:

* Active or Reserve components with 20 years of creditable service or medically retired
* Receiving military retired pay
* Have a 30% or greater VA related injury
* Military retired pay is reduced by VA disability payments (VA waiver)

In addition, veterans must be able to provide documentary evidence that their injuries were a result of one of the following:

* Training that simulates war (e.g., exercise, field training)
* Hazardous duty (e.g., flight, diving, parachute duty)
* An instrumentality of war (e.g., combat vehicles, weapons, Agency Orange)
* Armed conflict (e.g., gunshot wounds, Purple Heart)

16.  The Fiscal Year (FY) 2008 National Defense Authorization Act (NDAA) eliminated the requirement for 20 years of service to qualify for CRSC effective 1 January 2008.  The FY 2008 NDAA also 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 not 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.

17.  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 DES (Disability Evaluation System) Pilot
Enhanced".  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. 

18.  Army Regulation 635-5-1 (Separation Program Designator Codes) states the SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The primary purpose of SPD codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of the Department of Defense and the Military Services to assist in the collection and analysis of separation data.

DISCUSSION AND CONCLUSIONS:

1.  The applicant is requesting his DD Form 214 show he was retired for combat-related injuries thereby making him eligible for VA CRSC.  The evidence of record shows he sustained a critical gunshot wound on 3 June 1993 during a live fire night exercise.  A formal PEB made its recommendation for permanent physical disability retirement on the finding his injury was received in the line of duty and did result for a combat related injury.  He was retired on 12 December 1994.

2.  On 13 Mach 2008, the Under Secretary of Defense established four new SPD codes to 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.  These SPD codes were not in effect at the time of his retirement in 1994.  He was properly issued a DD Form 214 showing an SPD code which corresponded with the narrative reason for his separation.  

3.  Based on the foregoing, he is not entitled to correction to the narrative reason for separation on his DD Form 214 show "combat-related" retirement.  He was properly issued a DD Form 214 showing an appropriately assigned SPD code at the time.  His record contains pertinent documentary evidence that his injuries were a result of training that simulates war.

4.  The PEB determination in Item 10 of his formal PEB dated 18 October 1994 recognized his injury was received in the line of duty and resulted from a combat related injury.  This documentation should assist him in identifying his injury as combat-related for the purpose of qualifying for CRSC.

5.  Under the provisions of the NDAA of 2008, the requirement for 20 years of service to qualify for CRSC was eliminated.  Therefore, the applicant is advised to view the CRSC website at http://www.crsc.army.mil and follow the instructions for applying for CRSC, if he is otherwise qualified.

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)                                         AR20100021017



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ABCMR Record of Proceedings (cont)                                         AR20100021017



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