IN THE CASE OF:	  

		BOARD DATE:	  3 May 2011

		DOCKET NUMBER:  AR20100025534 


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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show  he was discharged based on "disability, severance pay, combat related."

2.  The applicant states that his injuries occurred in combat and item 28 (Narrative Reason for Separation) of his DD Form 214 should be corrected to reflect this.

3.  The applicant provides copies of two Physical Evaluation Board documents, his DD Form 214, and 4 pages from the Department of Defense (DoD) Financial Management Regulation (FMR).

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior enlisted service in the:

* U.S. Army Reserve (USAR) from 14 April 1988 to 21 September 1988
* Regular Army from 22 September 1988 to 15 February 1992
* Army National Guard of the United States (ARNGUS) from 16 February 1992 to 16 September 2000
* USAR Control Group (Reinforcement) from 17 September 2000 to
9 December 2004

2.  Upon completion of training in 1989, he was awarded military occupational specialty 63B (Wheeled Vehicle Mechanic).
3.  The applicant enlisted in the ARNGUS and Arizona Army National Guard (AZARNG) on 10 December 2004.

4.  He was ordered to active duty in the Army on 26 August 2005 in support of Operation Iraqi Freedom (OIF) and he served in Iraq from 9 November 2005 to
10 September 2006.

5.  A DA Form 199 (Physical Evaluation Board (PEB) Proceedings), shows a PEB convened on 13 January 2009 to consider the applicant's medical condition.

   a.  The Disability Description section of the DA Form 199 describes his Medical Evaluation Board (MEBD) diagnoses and, in pertinent part, shows:

       (1)  "Degenerative arthritis of the Lumbar spine.  The Soldier had a back strain injury while deployed to OIF in 2006 and has had low back pain since that time that now prevents training for [the] APFT [Army Physical Fitness Test]."  It also shows, "Forward flexion is functionally limited to 35 degrees by pain for which rated 20%.  [MEBD Diagnosis 1 and Narrative Summary.]"

       (2)  "Your functional limitations in maintaining the appropriate level of stamina, caused by the physical impairments recorded above, make you medically unfit to perform the duties required of a Solder of your rank and primary specialty."

       (3)  "Conditions listed as [MEBD] diagnoses #2, 3, 4, were determined to meet retention standards by the MTF [Medical Treatment Facility].  Further, consideration by the PEB found the conditions to be not unfitting and therefore not ratable."

       (4)  It also shows his medical condition:

* was not the result of intentional misconduct, willful neglect or unauthorized absence
* was incurred or aggravated while entitled to basic pay
* was incurred or aggravated in line of duty in the time of national emergency or after 14 September 1978
* was a proximate result of performing duty

   b.  Based on a review of the medical evidence of record, the PEB found the applicant physically unfit; recommended a combined rating of 20% disability rating percentage; and separation with severance pay, if otherwise qualified.

   c.  It shows in item 10 (If retired [separated] because of disability, the board makes the recommended finding that:):

       (1)  [paragraph A] "the Soldier's retirement [separation] is not based on disability from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurring in line of duty during a period of was as defined by law";

       (2)  [paragraph B] "evidence of record reflects the Soldier was not a member or obligated to become a member of an armed force or reserve thereof, or the NOAA [National Oceanic and Atmospheric Administration] or the USPHS [U.S. Public Health Service] on 24 September 1975";

       (3)  [paragraph C] "the disability did not result from a combat related injury as defined in 26 U.S.C. 104 [Title 26, United States Code, section 104]"; and

       (4)  [paragraph D] "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 [National Defense Authorization Act of Fiscal Year 2008], section 1646."

   d.  On 15 January 2009, the applicant indicated with his signature that he concurred with the findings and recommendations of the informal PEB and waived a formal hearing of his case.

   e.  The PEB Liaison Officer (PEBLO) indicated with her signature that she informed and explained to the applicant the findings and recommendations of the PEB.

   f.  The PEB proceedings were approved on 26 January 2009.

6.  The applicant's DD Form 214 shows he was honorably discharged on 26 April 2009 under the provisions of Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4.

   a.  Item 28 shows "Disability, Severance Pay, Non-Combat Related."

   b.  He had completed 3 years, 8 months, and 1 day of net active service this period; 3 years, 4 months, and 24 days of total prior active service; and 13 years, 11 months, and 18 days of total prior inactive service.


7.  The applicant provides the following documents:

   a.  A DA Form 5892 (PEBLO Estimated Disability Compensation Worksheet) that shows on the reverse side in the "Notes of Explanation for Estimated Disability Compensation" the applicant highlighted the following:

       (1)  Item 7 - Exclusion from Federal gross income:  Disability severance pay of the amount of retired pay equal to the disability percentage times the Soldier's retired pay base is excluded from federal gross income under either of the following circumstances.  Paragraph b - The disability is combat related under the provisions of 26 USC 104.  See AR 635-40.

       (2)  Item 8 - Exclusion of severance pay from VA [Veteran Affairs] recoupment:  NDAA 2008 excluded severance pay from deduction from DVA [Department of Veteran Affairs] compensation when the severance pay is awarded for a disability incurred in a combat zone as determined by the Secretary of Defense or for a disability incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense.  For all other awards, the net amount of disability severance is deducted from DVA compensation.

   b.  Four pages from DoD FMR, Volume 7A (Military Pay Policy and Procedures - Active Duty and Reserve Pay), paragraph 3504 (Disability Severance Pay), that shows the applicant highlighted in subparagraph 350406 (recoupment from VA Compensation), "No deduction will be made in the case of disability severance pay received by a member for a disability incurred in the line of duty in a combat zone or incurred during performance of duty in combat-related operations as designated by the Secretary of Defense."

8.  Title 10, U.S. Code, section 104 (Compensation for injuries or sickness), provides special rules for combat-related injuries and shows 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.

9.  AR 635-40 sets forth policies, responsibilities, and procedures in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.

   a.  Chapter 4 (Procedures), paragraph 4-19 (PEB decisions - common criteria), subparagraph a (Determinations), provides that the voting members of a PEB make findings and recommendations in each case on the basis of the 


instructions set forth in paragraphs b through q.  The board decides all questions by majority vote.  All findings must be based on a preponderance of the evidence.  Recommendations must be supported by the findings.
   
   b.  Subparagraph j (Armed conflict - instrumentality of war) provides that certain advantages accrue to Soldiers who are retired for physical disability and later return to work for the Federal Government when it is determined that the disability for which retired was incurred under specific circumstances.  These advantages concern preference eligible status within the Civil Service system (Title 5, U.S. Code, section 3501):
   
   	(1)  If the disability resulted from injury or disease received in line of duty as a direct result of armed conflict and which itself renders the Soldier unfit.  A disability may be considered a direct result of armed conflict if -

   		(a)  The disability 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; while the Soldier was interned as a prisoner of war or detained against his will in the custody of a hostile or belligerent force; or while the Soldier was escaping or attempting to escape from such prisoner of war or detained status. 

   		(b)  A direct causal relationship exists between the armed conflict or the incident or operation, and the disability.

   	(2)  The disability is unfitting, was caused by an instrumentality of war, and was incurred in line of duty during a period of war as defined by law. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the entry in item 28 of his DD Form 214 should be corrected to read "disability, severance pay, combat related" because his injury incurred in combat.

2.  The evidence of record shows the applicant's PEB decision document contains a narrative on his unfitting condition (i.e., degenerative arthritis of the lumbar spine).  It shows the applicant had a back strain injury while deployed to OIF and that he had low back pain since that time that prevented training for the APFT.  The PEB found, in pertinent part, "[t]he disability did not result from a combat related injury as defined in 26 USC 104"; the applicant concurred with the PEB's finding and recommendation; and the PEB proceedings were approved.  

3.  There is no evidence, and the applicant provides insufficient evidence, to show his injury was incurred as a direct result of armed conflict, while engaged in extra-hazardous service, under conditions simulating war, or caused by an instrumentality of war as defined by 26 USC 104.

4.  Therefore, in view of the foregoing, it is concluded that item 10 of the applicant's DA Form 199 and the entry in item 28 of his DD Form 214 are correct in both law and regulation.  Therefore, the applicant is not entitled to correction of his records in this case.

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)                                         AR20100025534



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ABCMR Record of Proceedings (cont)                                         AR20100025534



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