IN THE CASE OF:	  

		BOARD DATE:	    6 August 2013

		DOCKET NUMBER:  AR20120022510 


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 amendment of Item 28 (Narrative Reason for Separation) of her DD Form 214 (Certificate of Release or Discharge from Active Duty) ending on 2 May 2012.

2.  The applicant states, in effect, she would like the words "Non-Combat Related" removed from Item 28.  Per the Veteran's Survival Guide, Combat-Related Injuries and Diseases, this does not confirm the Soldier had direct physical contact with enemy forces before a claim is justified.  

3.  The applicant provides:

* Enlisted Record Brief
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings)
* Physical Disability Information Report
* DD Form 2648 (Preseparation Counseling Checklist)
* an extract of the Veteran's Survival Guide
* DD Form 214

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 
3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 14 March 2007.  She completed training and was awarded military occupational specialty 31E (Internment/Resettlement Specialist).  She served in Cuba from 11 August 2007 through 12 August 2008.

3.  Her record contains and she provides a copy of the following:

   a.  A DA Form 199 which shows an informal PEB convened on 18 January 2012 and considered her disability of degenerative arthritis of the spine and found this condition prevented her from performing her duties and determined that she was physically unfit.  The PEB stated the applicant had insidious onset of back pain after lifting a collapsed tent at Guantanamo Bay in mid 2008 resulting in two discectomies (surgical procedures relieving the pressure placed on the nerve roots and/or spinal cord).  The PEB recommended she be separated with severance pay, if otherwise qualified, with a 20-percent disability rating.  On 25 January 2012, she waived her right to a formal hearing and concurred with the PEB's findings and recommendations.  The PEB was approved on the same date.

   b.  A Physical Disability Information Report, dated 6 February 2012, which shows the PEB did not find that her retirement on disability resulted from a combat-related injury, or incurred in a combat zone, or in the line of duty during a period of war as defined by law.

4.  Orders 044-0003 were issued by the Installation Management Command – Europe, on 13 February 2012, reassigning her for discharge.  The orders specify her disability was not based on injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war.

5.  On 5 May 2012, she was honorably discharged.  She completed 5 years, 1 month, and 19 days of creditable active service with no time lost.  

6.  Her DD Form 214 shows the following entries in:

* Item 18 (Remarks) - Disability Severance Pay -- $27,723.00
* Item 25 (Separation Authority) - Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4
* Item 26 (Separation Code) - JFO
* Item 28 - Disability, Severance Pay, Non-Combat Related

7.  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/her office, grade, rank, or rating.  Chapter 4 provides for the separation of enlisted personnel who are not qualified for retention on active duty by reason of physical disability which is neither incurred nor aggravated during any period in which the member was entitled to basic pay.

8.  The Fiscal Year National Defense Authorization Act 2008 which became Public Law 110-181, on 28 January 2008, authorized an enhancement of disability severance pay for members of the armed forces.  The law mandated that the Secretaries of Military Departments identify and certify members with a disability incurred in a line of duty in a combat zone tax exclusion area or incurred during performance of duty in combat-related operations as designated by the Secretary of Defense.  The determination of "incurred during performance of duty in combat-related operations" shall be made consistent with the criteria of the law.  This provision applies to members, not disability separated or retired as of 28 January 2008.  Military Departments shall ensure the appropriate severance pay is calculated in accordance with Title 10, U.S. Code, section 12, and is paid.

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."  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.

   a.  SPD Code of "JFI" for disability, severance pay, combat-related, is appropriate for service initiated discharge in accordance with established directives, resulting from physical disability with combat-related severance pay and entitlement, as amended by section 1646, Public Law 110-181 (Retirement is not authorized).

	b.  SPD Code of "JFO" for disability, severance pay, non-combat related, is appropriate for service initiated discharge in accordance with established directives, resulting from physical disability with non-combat related severance pay and entitlement, as amended by section 1646, Public Law 110-181 (Retirement is not authorized).

	c.  SPD Code of "JEA" for disability, severance pay, non-combat related (Enhanced), is appropriate for service initiated discharge in accordance with established directives, resulting from physical disability with combat-related severance pay and entitlement, as amended by section 1646, Public Law      110-181 (Retirement is not authorized-DES Pilot-Enhanced).

	d.  SPD Code of "JEB" is for disability, severance pay, non-combat related, is appropriate for service initiated discharge in accordance with established directives, resulting from physical disability with non-combat related severance pay and entitlement, as amended by section 1646, Public Law 110-181.  (Retirement is not authorized-DES Pilot-Enhanced).

10.  Title 38, U.S. Code, sections 1110 and 1131, permit the Department of Veterans Affairs (VA) to award compensation for disabilities which were incurred in or aggravated by active military service.

11.  The Veteran's Survival Guide, Combat-Related Injuries and Diseases provided by the applicant outlines the procedures for a combat veterans filing a claim for injuries or diseases incurred or aggravated while engaged in wartime operations against hostile forces.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions and the documents she provides were carefully considered and found not to have merit.  However, the evidence of record shows a PEB determined her disability of degenerative arthritis of the spine to be neither incurred in the line of duty as a direct result of armed conflict, nor resulted from a combat-related injury, nor incurred in a combat zone.  The PEB stated she had insidious onset of back pain after lifting a collapsed tent in 2008 which resulted in two discectomies.  She concurred with the PEB and she was discharged accordingly on 2 May 2012.   

2.  In the absence of evidence to the contrary, she was properly and equitably discharged in accordance with the appropriate regulations.  It appears that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  She was issued an SPD code of "JFO" which corresponds to the reason for her discharge.  Therefore, Item 28 of her DD Form 214 is commensurate with and corresponds to the reason for her discharge.

3.  It is noted the award of service-connected disability compensation from the VA for any medical condition does not establish entitlement to amendment to a narrative reason of separation.  In view of the foregoing, there is no basis for granting her request. 

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)                                         AR20120022510





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ABCMR Record of Proceedings (cont)                                         AR20120022510



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