IN THE CASE OF:	  

		BOARD DATE:  24 July 2012

		DOCKET NUMBER:  AR20110024581 


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, 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 as combat-related.

2.  He states, in effect, his discharge orders and physical evaluation board (PEB) proceedings state his disability did result from a combat-related injury as defined in Title 26, U.S. Code, section 104 (compensation for injuries or illness).

3.  The applicant provides:

* discharge orders
* extract of his military medical record
* various documents from his military personnel file

CONSIDERATION OF EVIDENCE:

1.  He enlisted in the Regular Army on 6 August 2008.

2.  A DA Form 199 (PEB Proceedings) shows a PEB convened on 23 December 2008 to determine his fitness for retention on active duty.

	a.  The PEB lists his disability as reflex sympathetic dystrophy right foot and non-displaced fracture of the fifth metatarsal (toe).  The injury occurred during a pugil stick competition in August 2008.

	b.  Item 10c of the proceedings shows the disability did result from a combat-related injury as defined in Title 26, U.S. Code, section 104.

	c.  Item 10d states 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 in accordance with the National Defense Authorization Act (NDAA) 2008, section 1646.

3.  The PEB found the applicant physically unfit for continued service and recommended separation with severance pay and a combined rating of 20 percent.

4.  The applicant was discharged with severance pay on 8 January 2009.  Item 26 (Separation Code) of his DD Form 214 shows the entry "JFO" and item 28 shows the entry "disability, severance pay, noncombat-related."

5.  He submits Orders 007-0162, dated 7 January 2009, which state, in part, his scheduled date of separation was 8 January 2009 and under additional instructions the entries "d.  disability resulted from a combat related injury as defined in Title 26, U.S. Code, section 104:  Yes" and "f.  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, section 1646):  No."

6.  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 the line of duty during a period of war.

7.  Title 26 (Internal Revenue Code) U.S. Code, section 104 states, in part, 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.

8.  The Fiscal Year (FY) 2008 NDAA, which became Public Law 110-181 on 28 January 2008, authorized an enhancement of disability severance pay for members of the Armed Forces.  Military Departments shall ensure the appropriate severance pay is calculated in accordance with Title 10, U.S. Code, section 1212.

9.  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.

10.  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 FY 2008 NDAA and the DES Pilot Program.  It directed that SPD codes JFI and JFO would replace SPD codes JFL and JEA.

	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, noncombat-related, is used for a discharge resulting from physical disability with noncombat-related severance pay and entitlement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant sustained an injury to his right foot during a pugil stick competition.  The PEB determined he was physically unfit for further military service and recommended separation with entitlement to severance pay.

2.  Based on Department of Defense guidance (for SPD purposes), in order for the applicant's injury to be categorized as "yes," the injury must have occurred or been sustained during combat-related operations, otherwise the injury is categorized as noncombat-related.  This determination pertains to members being discharged with severance pay.

3.  When the FY 2008 NDAA specified potential benefits for those being medically separated with severance pay, four new SPD codes were created.  The applicant's injury sustained during a pugil stick competition is considered hazardous duty and/or simulation of war.

4.  The entry in item 10c of the applicant's DA Form 199 which states his disability did result from a combat-related injury as defined in Title 26, U.S. Code, section 104 (for internal revenue code purposes), is correct and is also correctly shown on his discharge orders, dated 7 January 2008.

5.  Under the FY 2008 NDAA, in order to differentiate injuries and establish specific entitlements to certain programs, the Department of Defense established specific SPD's for each type of injury.  In the applicant's case, his injury was not incurred during the performance of duty in combat-related operations.  He was discharged as a result of a disability that did not occur during combat-related operations which is correctly shown on his DD Form 214.

6.  The applicant was appropriately assigned SPD code JFO which then automatically dictated his narrative reason for separation as "noncombat."  Therefore, there is no basis for granting the applicant's request to amend item 28 of his DD Form 214.

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)                                         AR20110024581



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ABCMR Record of Proceedings (cont)                                         AR20110024581



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