BOARD DATE:	  24 May 2011

		DOCKET NUMBER:  AR20100026746 


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 26 (Separation Code) and item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was discharged because of permanent disability vice temporary disability.

2.  The applicant states his DD Form 214 was issued in September 2008 while he was on the Temporary Disability Retired List (TDRL).  Orders issued on 22 March 2010 state he was removed from the TDRL and discharged because of a permanent disability and the disability is combat-related.  Therefore, the reason for separation should be JFI (Disability, Severance Pay, Combat Related) or JEA (Disability, Severance Pay, Combat Related (Enhanced)).  A swift response would be appreciated as this will stop the current recoupment of his severance pay.

3.  The applicant provides his DD Form 214 and orders.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 3 August 2005 and he held military occupational specialty 15T (UH-60 Helicopter Repairer).  He was assigned to the 4th Aviation Brigade, Fort Hood, TX.

2.  On 12 June 2008, a physical evaluation board (PEB) convened to consider the applicant's disability of mild and persistent asthma that prevented him from wearing the chemical protective mask and required daily medications.  The PEB found his medical and physical impairments prevented reasonable performance of duties required by his grade and military specialty.  The PEB placed him on the TDRL because his conditions were not sufficiently stable for final adjudication.  On 19 June 2008, he concurred with the findings and recommendations of the PEB.

3.  He was honorably retired from active duty on 23 September 2008, under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(2), by reason of temporary disability.  He completed 3 years, 1 month, and 21 days of creditable active service.  Item 26 (Separation Code) of his DD Form 214 contains the entry "SFK."

4.  On 11 February 2010, a TDRL PEB convened to consider the applicant's disability of asthma that became worse with exercise.  Based on the TDRL examination, the PEB found he remained unfit to reasonably perform the duties required by his grade and military specialty.  The PEB also found his condition was sufficiently stable for final adjudication, he should be permanently retired, and the disability was incurred in a combat zone or during the performance of duty in combat-related operations.  On 27 February 2010, he received the findings and recommendations of the PEB, but he failed to respond or make an election.

5.  U.S. Army Physical Disability Agency (USAPDA) Orders Number D081-81, dated 22 March 2010, removed him from the TDRL and discharged him from the Army effective 22 March 2010 because of permanent physical disability with a 
10-percent disability rating and entitlement to severance pay based on 6 years of service.  The orders also state the disability was incurred in a combat zone or incurred during the performance of duty in combat-related operations.

6.  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 4-24b states that upon final decision of the USAPDA or Army Physical Disability Board, an individual would be issued retirement orders or orders for placement on the TDRL.

7.  Army Regulation 635-5-1 (Separation Program Designator (SPD) 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.  This regulation shows the SPD code of SFK is the appropriate code for Soldiers retired from active duty under the provisions of Army Regulation 635-40, paragraph 4-24b(2), by reason of temporary disability.

8.  All Army Activities Message 147/2008, dated 13 June 2008, subject:  Implementation of new SPD codes for disability-related provisions of the National Defense Authorization Act (NDAA) 2008 and the Disability Evaluation System (DES) Pilot Program implements new SPD codes for disability related provisions of the fiscal year 2008 NDAA and the DES Pilot Program.  This message states that the Department of Defense Memorandum, dated 13 March 2008, directed the implementation of the following four new SPD codes pertaining to the rating conditions and the calculation of disability severance pay:  JFI, JFO, JEA, and JEB.

9.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  In pertinent part, it states the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  Paragraph 2-1(a)(2) specifies that a DD Form 214 will be prepared for active Army Soldiers on termination of active duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant suffered a medical condition that warranted his entry into the PDES.  He appears to have been considered by a medical evaluation board that referred him to a PEB.  The PEB found his medical condition unfitting at the time.  The PEB recommended placing him on the TDRL because his condition at the time was not sufficiently stable for final adjudication.  Therefore, it did not recommend a permanent rating.

2.  The evidence of record shows the applicant was retired from active duty on 23 September 2008 under the provisions of Army Regulation 635-40, paragraph 4-24b(2), by reason of temporary disability with a corresponding SPD code of SFK.  The DD Form 214 is meant to show the status of a Soldier on the last day of active duty.  At that time, he was retired for disability; the new SPDs do not apply to disability retirement.  Therefore, he received the appropriate reason for separation and SPD code associated with his retirement from active duty and he is not entitled to the requested relief.

3.  The disposition of a member's disability rating might change while on the TDRL.  A member may be found fit for duty, permanently retired, extended on the TDRL, or separated with severance pay.  In his case, his TDRL evaluation found he remained unfit to reasonably perform the duties required of his specialty and grade, but his condition had stabilized enough for final adjudication.  Accordingly, the TDRL PEB recommended his separation with entitlement to severance pay.

4.  His records contain orders which removed him from the TDRL and discharged him from the Army effective 22 March 2010 because of permanent physical disability with entitlement to severance pay.  These orders also state the disability was incurred in a combat zone or incurred during the performance of duty in combat-related operations and are sufficient documentary evidence to show his disability was combat-related.

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 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)                                         AR20100026746



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ABCMR Record of Proceedings (cont)                                         AR20100026746



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