IN THE CASE OF:	   

		BOARD DATE:	  30 January 2014

		DOCKET NUMBER:  AR20130005035 


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 her DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 14 May 1990 to show she was medically retired with a disability rating of 20 percent as a result of an injury she incurred while performing combat-related training.  She also requests award of the Overseas Service Ribbon.

2.  The applicant states:

* her award of 20 percent severance pay was never properly explained and immediately returned
* the term combat-related was not used for female Soldiers
* since she was medically retired, she did not receive her Overseas Service 
Ribbon
* she needs to correct her DD Form 214 in order to qualify for benefits

3.  The applicant provides:
* a DD Form 214
* an Optional Form 275 ( Medical Record Report), dated 26 February 1990
* a DA Form 3349 (Physical Profile), dated 26 February 1990
* two Department of Veterans Affairs (VA) memoranda, dated 30 April 1991 and 21 January 2013
* her Leave and Earning Statements (LES) for the period 1-14 May 1990
* an electronic message, subject:  Retrieval of Line of Duty Determination for Physical Disability Processing, dated 3 March 1990
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 U.S. Army Reserve (USAR) on 22 December 1986.  She entered active duty for training on 1 July 1987.  On 29 October 1987, she was awarded military occupational specialty (MOS) 88M (motor transport operator).  She was returned to her USAR unit.

3.  On 28 April 1988, she was honorably discharged from the USAR for the purpose of immediate enlistment in the Regular Army (RA).  On 29 April 1988, she enlisted in the RA for a period of 4 years.

4.  Her record contains:

	a.  an Optional Form 275, dated 26 February 1990, that states the applicant was seen for chronic low back and left leg pain, secondary to central disc L5/S1.

	b.  a DA Form 3349, dated 26 February 1990, that shows she received a permanent profile due to chronic low back and left leg pain, secondary to a herniated disc.

	c.  a DA Form 3947 (Medical Evaluation Board (MEB) Proceedings), dated 
12 March 1990, that show she was referred to a physical evaluation board (PEB) for chronic low back and left leg pain, secondary to central herniated disc L5/S1.

	d.  a DA Form 199 (PEB Proceedings), dated 26 March 1990, that show the PEB found the applicant unfit for the one listed condition of intervertebral disc 
syndrome with pain in low back and intermittent left leg sharp pain; central herniated nucleus pulposis at L5/S1 by cat scan.

		(1)  The board found there was no evidence of misconduct and made a finding of in the line of duty, not due to own misconduct and explained that since she had a service-connected medical condition, she should contact the VA to determine her eligibility for or entitlement to VA benefits.

		(2)  The PEB continued that Soldiers who receive a rating of less than 30 percent and have less than 20 years of active service require separation with severance pay in lieu of retirement pay.  The amount of severance pay the applicant will receive is based on the amount of one's active duty service, not one's disability rating.  The applicant would receive the same amount of severance pay regardless of whether her rating was 10 or 20 percent.  Severance pay is calculated by multiplying monthly basic pay times two times the number of years of active duty service not to exceed 12 years.  The board found the applicant to be physically unfit and recommended a combined rating of
20 percent, and separation with severance pay.

	e.  a Telephonic Informal Election form, which shows that on 3 April 1990 the applicant concurred with the informal PEB and waived a formal hearing after being notified of the results regarding the findings and recommendations of the informal PEB.

	f.  an electronic message, dated 3 March 1990, wherein the applicant states in:

		(1)  1989 at Hanau, GE, while on duty she lifted a tire rim on the back of a military truck and that was the onset of her back pain, and

		(2)  August 1989 at Fort Hood, TX, while on an Army Training and Evaluation Program (ARTEP) exercise, she was running to her fighting position, fell in a foxhole, and reinjured her back.

	g.  her DD Form 214 for the period ending 14 May 1990 that shows she was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24e(3), by reason of physical disability with severance pay.  She completed 2 years and
16 days of net active service this period with 3 months and 29 days of prior active service, for a total of 2 years, 4 months, and 15 days of creditable active service.  Her DD Form 214 shows in:

		(1)  item 12f (Foreign Service) the entry "0000  10  29," indicating she completed 10 months and 29 days of foreign service during the period covered by the DD Form 214.

		(2)  item 13 (Decorations, Medals, Badges, Citations, and Campaign 
Ribbons Awarded or Authorized) no entry for the Overseas Service Ribbon.
		(3)  item 18 (Remarks) she received disability severance pay in the amount of "$4,0004.40." 

	h.  the applicant's record is void of any derogatory information or a commander's disqualification that would have precluded her from being recommended for or awarded the first award of the Army Good Conduct Medal.

4.  The applicant submitted:

	a.  an LES for the period 1-14 May 1990, that shows in:

		(1)  item 6H (Entitlements) the entry "Disable Pay" in the amount of $4,004.00: 

		(2)  item 8C (Other Collections) the entry "Casual Pay" in the amount of $5,030.85; and

		(3)  item 39 (Remarks) the entry "Trans Doc No" 060357050567DISAB PAY 2 years, 4 months, pay grade E4, 20 percent combat-related injury, total $4,000.40 in 1 payment.

	b.  two memoranda from the VA, dated:

		(1)  30 April 1991, that stated her claim for disability compensation was established as service-connected for spinal disc condition, 10 percent.  This award was subject to recoupment of "$40004.40" severance pay received from her service department.  

		(2)  21 January 2013, that stated the information used to establish her benefits for VA health care changed and her unique eligibility factors were:

* 40 percent service-connected
* discharged from the military with a disability that was incurred in the line of duty
* medically retired from the military

5.  Army Regulation 635-40 establishes the physical disability evaluation system (PDES) 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 or her office, grade, rank, or rating.  It 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 that is unfitting was caused by an instrumentality of war and was incurred in the line of duty during a period of war.  A determination that a disability was caused by an instrumentality of war and incurred in the line of duty will be appropriate only when it is also determined that the disability so incurred in itself renders the member physically unfit and was incurred during one of the periods of war as defined by law.

6.  Title 26, U.S. Code, section 104, states for the purpose of this subsection, the term "combat-related injury" means personal injury or sickness that is incurred as a direct result of armed conflict, while engaged in extra hazardous service, or under conditions simulating war; or is caused by an instrumentality of war.

7.  Army Regulation 635-40 also provides that a Soldier may be separated with severance pay if the Soldier's disability is rated at less than 30 percent, if the Soldier has less than 20 years of service as defined in Title 10, U.S. Code, section 1208, and if the Soldier's disability occurred in the line of duty and is the proximate result of performing active duty.

8.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rated at less than 30 percent.  Section 1212 provides that a member separated under section 1203 is entitled to disability severance pay.

9.  Army Regulation 600-8-22 (Military Awards) states:

	a.  The Army Good Conduct Medal is awarded to individuals who distinguish themselves by their conduct, efficiency, and fidelity during a qualifying period of active duty enlisted service.  This period is 3 years except in those cases when 
the period for the first award ends with the termination of a period of Federal military service.  Although there is no automatic entitlement to the Army Good Conduct Medal, disqualification must be justified.

	b.  The Overseas Service Ribbon is awarded for successful completion of overseas tours.

10.  Army Regulation 614-30 (Overseas Service), Table 7-1 (Award of tour credit and adjustment of date eligible to return from overseas/date of return from overseas) states if a Soldier serves less than the normal prescribed tour, when curtailment was for the convenience of the Government and through no request or fault or the service, then credit the Soldier with a completed tour and a new date returned from overseas.  (The proponent of the regulation confirmed that a physical disability separation should be considered a separation for the convenience of the Government.)

11.  Army Regulation 635-5 (Separation Documents) establishes the policies and procedures for completion and distribution of the DD Form 214.  It states that item 28 will list the narrative reason for separation based on regulatory or other authority and can be cross-referenced in Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes).

DISCUSSION AND CONCLUSIONS:

1.  The applicant had one episode of lower back injury subsequent to injuring her back in August 1989 that led to the curtailment of her tour in Germany.  She was not in direct combat.  She was on an ARTEP when her lower back and leg  injuries were seen, diagnosed, and led to her subsequent discharge with severance pay.  Her lower back injury was caused by a combat-related event.  

2.  Her lower back and leg pains were determined to have rendered her unfit for continued service.  Accordingly, a PEB convened and rated her for this condition at 20 percent.  She concurred and was discharged with entitlement to severance pay.  Since her rating was under 30 percent she was not entitled to a medical retirement. 

3.  The applicant's DA Form 199 properly shows her injury was incurred as a result of a training accident and meets the definition of a combat-related injury as defined in Title 26 U.S. Code.  However, there was no provision for entering this information on her DD Form 214 at the time of her separation.

4.  In view of the circumstances in this case, there is insufficient evidence to grant her the requested relief.

5.  Evidence of record shows the applicant's tour of duty in Germany was curtailed due to no fault of her own.  Therefore, she is entitled to have her 
DD Form 214 corrected to show award of the Overseas Service Ribbon.

6.  Her record is void of orders awarding her the Army Good Conduct Medal.  A review of her military service record did not reveal any disciplinary action or a commander's disqualification for award of the Army Good Conduct Medal during her active duty enlisted service.  Therefore, she should be awarded the Army Good Conduct Medal (1st Award) for the period 29 April 1988 to 14 May 1990.

7.  Evidence of record shows the applicant was awarded $4,004.40 severance pay as a result of her 20 percent disability rating.  However, her DD Form 214 incorrectly indicates she was awarded "$40004.40."  Therefore, her DD Form 214 should be corrected to show she was awarded $4,004.40 in severance pay.

BOARD VOTE:
________  ________  ________  GRANT FULL RELIEF 

____x___  ___x____  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  _________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:
1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  deleting the entry "SOLDIER AUTHORIZD SEVERANCE PAY IN THE AMOUNT:  $4,0004.40//NOTHING FOLLOWS" from item 18 of her DD Form 214;

	b.  awarding her the Army Good Conduct Medal (1st Award) for the period 
29 April 1988 to 14 May 1990; 

	c.  adding the Army Good Conduct Medal (1st Award) and Overseas Service Ribbon to item 13 of her DD Form 214; and 

	d.  adding the entry "SOLDIER AUTHORIZD SEVERANCE PAY IN THE AMOUNT:  $4,004.40//NOTHING FOLLOWS" to item 18 of her DD Form 214.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to correction her DD Form 214 to show the narrative reason for her separation was combat related.



      ___________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)                                         AR20130005035





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ABCMR Record of Proceedings (cont)                                         AR20130005035



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