IN THE CASE OF:	  

		BOARD DATE:  19 June 2012

		DOCKET NUMBER:  AR20110024492 


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 in:

* Item 26 (Separation Code) "JEA" vice "JEB"
* Item 28 (Narrative Reason for Separation) "disability, severance pay, combat-related (enhanced)" vice "disability, severance pay, non-combat (enhanced)"

2.  The applicant states his DA Form 199 (Physical Evaluation Board (PEB) Proceedings) shows his disability as combat-related and his separation orders also indicate his disability resulted from a combat-related injury.  Therefore, he believes his DD Form 214 should show his disability was combat-related.

3.  The applicant provides his DD Form 214, two pages of a DA Form 199, and a printout titled Physical Disability Information Report.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 8 April 1992 and he held military occupational specialties (MOS) 63B (Wheeled Vehicle Mechanic) and 91X (Maintenance Supervisor), formerly MOS 63X.  He served in


various staff and leadership positions both stateside and outside the continental United States.  He was promoted to the rank/grade of sergeant first class (SFC)/E-7 on 1 December 2005.

2.  On 23 December 2010, a medical evaluation board (MEB) convened at Fort Carson, CO, and after consideration of clinical records, laboratory findings, and physical examinations found he had the following medically unacceptable conditions that fell below retention standards:

* Chronic low back pain, left lower extremity
* Post-traumatic stress disorder (PTSD)
* Recurrent major depression

3.  The MEB proceedings noted that all his conditions occurred in 2005.  The MEB recommended the applicant's referral to a PEB.  

4.  He did not agree with the MEB findings and submitted an appeal.  His appeal was subsequently denied and on 28 January 2011 the MEB was approved.

5.  On 27 April 2011, an informal PEB convened at Fort Lewis, WA.  The PEB found only the applicant's chronic low back pain condition prevented him from performing the duties required of his grade and specialty and determined he was physically unfit due to this condition.  

6.  The PEB rated him under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) and, as shown in items 8a, 8b, and 8g (VA Code, Disability Description, Percentage), he was granted "code 5241 – Lumbar Spondylosis, residuals of spinal fusion with scar.  Soldier reported, and medical records verify that he injured his back in an airborne landing in 2005….This is not a battle injury and did not occur in a combat theater; however, was the result of an instrumentality of war. (Emphasis added) Stable for rating.  There is no clinical or imaging evidence other than subjective complaints of radicular symptoms.  Therefore, radiculopathy is not unfitting."  He was given a 20 percent disability rating.

7.  The PEB considered the conditions of PTSD and major depressive disorder but based on his performance reports and commander's performance and functional statement found these conditions were not unfitting.  The PEB also considered his other medical condition(s) as listed on the MEB; however, these conditions were also not found to be unfitting and therefore were not rated.  The PEB recommended the applicant be separated with severance pay, if otherwise qualified.  He concurred and waived his right to a formal hearing of his case.

8.  His DA Form 199 contains, in pertinent part, the following entries in item 10 (If Retired Because of Disability, the Board Makes the Recommended Finding that):

* The disability did result from a combat-related injury as defined in Title 26, U.S. Code, section 104
* 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, National Defense Authorization Act (NDAA) 2008, section 1646

9.  His PEB was approved by an official at the U.S. Army Physical Disability Agency on behalf of the Secretary of the Army.

10.  He was discharged from active duty on 16 August 2011 in the rank of SFC under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, by reason of disability, severance pay, non-combat (enhanced).  He completed 19 years, 4 months, and 9 days of creditable active service.

11.  Item 26 (Separation Code) of his DD Form 214 shows the entry "JEB" and item 28 (Narrative Reason for Separation) shows the entry "disability, severance pay, non-combat (enhanced)."

12.  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.

13.  All Army Activities 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 fiscal year 2008 NDAA and the DES Pilot Program.  It directed that SPD codes of "JFI" and "JFO" would replace SPD code "JFL," and the SPD codes of "JEA" and "JEB" would replace SPD code "JEL."

	a.  SPD code "JFI" for disability, severance pay, combat-related, is used for a discharge a resulting from physical disability with combat-related severance pay and entitlement.

	b.  SPD code "JFO" for disability, severance pay, non-combat related, is used for a discharge resulting from physical disability with non-combat related severance pay and entitlement.

	c.  SPD code "JEA" for disability, severance pay, non-combat related (enhanced), is used for a discharge resulting from physical disability with combat-related severance pay and entitlement.

	d.  SPD code "JEB" for disability, severance pay, non-combat related, is used for a discharge resulting from physical disability with non-combat related severance pay and entitlement.

14.  NDAA 2008, section 1646 (Enhancement of Disability Severance Pay) provides that no deductions may be made from severance pay of service members rated less than 30 percent disability with less than 20 years of active duty, if the disability severance pay is for a disability incurred in line of duty in a combat zone or incurred during performance of duty in combat-related operations as designated by the Secretary of Defense.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his DD Form 214 should be corrected to show SPD code "JEA" and that he was discharged by reason of "disability, severance pay, combat-related (enhanced)."

2.  The evidence of record confirms the applicant sustained a back injury during an airborne landing in 2005.  In 2010, he underwent an MEB that referred him to a PEB.  The PEB determined his back condition rendered him physically unfit for further military service, rated his disability at 20 percent, and recommended he be separated with severance pay.  His disability was found to have been a combat-related injury but that it was not incurred in a combat zone or incurred during the performance of duty in combat-related operations.  He was counseled and concurred with the PEB's findings and recommendations and, accordingly, he was discharged.

3.  In accordance with the DES Pilot Program he was assigned an SPD code of "JEB."  This is the correct SPD for a discharge resulting from physical disability that was not incurred in a combat zone or incurred during the performance of duty in combat-related operations.  The corresponding narrative reason for separation with this SPD code is "disability, severance pay, non-combat related (enhanced)."

4.  His SPD code and narrative reason for separation are correctly shown on his DD Form 214.  Therefore, he is not entitled to 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)                                         AR20110024492



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ABCMR Record of Proceedings (cont)                                         AR20110024492



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