IN THE CASE OF:	  

		BOARD DATE:	  28 April 2011

		DOCKET NUMBER:  AR20100026188 


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 item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his disability resulted from a combat-related injury.

2.  The applicant states that item 28 shows "disability, severance pay, non-combat related," but his DA Form 199 (Physical Evaluation Board (PEB) Proceedings) states his disability did result from a combat-related injury as defined by Title 26, U.S. Code, section 104.

3.  The applicant provides a DD Form 214, a DA Form 199, and a Physical Disability Information Report.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 5 September 2001.  Upon completion of initial entry training he was awarded military occupational specialty 11B (Infantryman).  He reenlisted for 5 years on 9 September 2005.

2.  On 6 October 2009, he appeared before a PEB.  Section 8b (Disability Description) of the DA Form 199 indicates he subluxed his left shoulder in July 2003 after falling through a hole in a second-story rooftop while participating in a squad-designated marksmanship course.  After a period of physical therapy and light duty, he deployed but suffered recurrent dislocations which he was able to reduce.  He deployed a second time and had similar problems.  The PEB found him physically unfit and recommended a combined rating of 20 percent and separation with severance pay if otherwise qualified.  

3.  The PEB proceedings show that his disability did result from a combat-related injury as defined in Title 26, U.S. Code, section 104 and 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 (NDAA 2008 Sec 1646).

4.  He was discharged on 19 January 2010 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement or Separation), chapter 4.

5.  His separation orders indicate in additional instruction "d" that the disability resulted from a combat-related injury as defined in Title 26, U.S. Code, section 104.

6.  Item 26 (Separation Code) of his DD Form 214 shows the entry "JFO" and item 28 shows the entry "disability, severance pay, non-combat related."

7.  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 line of duty during a period of war.

8.  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.

9.  All Army Activities (ALARACT) 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 NDAA 2008 and the DES Pilot Program.  This message states that the Department of Defense memorandum, dated 13 March 2008, directed implementation of the following four new SPD codes pertaining to the rating of conditions and the calculation of disability severance pay.
	a.  SPD code of JFI is appropriate when the narrative reason for discharge is "disability, severance pay, combat related" and the authority is Army Regulation 635-40, chapter 4;

	b.  SPD code of JFO is appropriate when the narrative reason for discharge is "disability, severance pay, non-combat related" and the authority is Army Regulation 635-40, chapter 4;

	c.  SPD code of JEA is appropriate when the narrative reason for discharge is "disability, severance pay, combat related (enhanced)" and the authority is Army Regulation 635-40, chapter 4; and

	d.  SPD code of JEB is appropriated when the narrative reason for discharge is "disability, severance pay, non-combat (enhanced) related" and the authority is Army Regulation 635-40, chapter 4.

10.  Title 26, U.S. Code, section 104, states 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that item 28 of his DD Form 214 should be corrected to show his disability resulted from a combat-related injury.

2.  He sustained an injury while participating in a squad-designated marksmanship course.  The PEB determined he was physically unfit for further military service and recommended separation with entitlement to severance pay.

3.  Based on Department of Defense guidance, in order for an injury to be considered combat-related, 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.  His injury, sustained while participating in a squad-designated marksmanship course, is considered hazardous duty and/or simulation of war.

4.  When the FY 2008 NDAA specified potential benefits for those being medically separated with severance pay, four new SPD codes were created.  Under the 2008 NDAA, in order to differentiate injuries and establish specific entitlements to certain programs, DOD established specific SPDs for each type of injury.  In the applicant's case, his injury occurred in line of duty and it was caused by an instrumentality of war.  However, the 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.

5.  He was appropriately assigned SPD "JFO" which then automatically dictated his narrative reason for separation as "non-combat."

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)                                         AR20100026188



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ABCMR Record of Proceedings (cont)                                         AR20100026188



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