BOARD DATE:	  20 March 2014

		DOCKET NUMBER:  AR20130011797 


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 he was discharged because of a combat-related event instead of a non-combat related event.  

2.  The applicant states the error or injustice resulted from a lack of attention to detail on the part of separation officials and a failure on his part to notice the error prior to separation.  The error was brought to light by officials adjudicating his disability claim at the Department of Veterans Affairs (VA).  As a result of the discovered error, his severance pay is being recouped when it should be exempt.

3.  The applicant provides:

* DD Form 214 (with continuation sheet)
* Orders 333-0004, issued by Installation Management Command – Europe, Bamberg Transition Center, Federal Republic of Germany on    29 November 2011
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 6 August 2003.  He completed his initial entry training and was awarded military occupational specialty (MOS) 12B (Combat Engineer).  Upon the completion of his initial entry training he completed the Basic Airborne Course.  
2.  His record shows he deployed to Afghanistan on 2 occasions, from 28 March 2005 through 24 March 2006 and from 6 May 2007 through 12 July 2008. 

3.  On 18 October 2011, an informal PEB convened at the National Capital Region PEB, Arlington, VA, and found the applicant's condition (foot pain due to injury, foot pain due to injury (osteoarthritis and neuritis)) prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit.  His DD Form 199 shows:

   a. Item 8b. (Disability Description) of his DD Form 199 shows:

* he suffered from residual right foot pain resulting from multiple bone fractures following an airborne training jump in April 2009, at Grafenwoehr Training Center, Federal Republic of Germany (FRG), under conditions simulating war
* his injury resulted from an instrumentality of war (military parachute) during an airborne training jump in the FRG, under conditions simulating war and during a period of war
* his condition is unfitting, as he cannot evade fire or wear load-bearing equipment for at least 12 hours per day 

   b. The PEB rated him under the VA Schedule for Rating Disabilities (VASRD) and he was granted a 10-percent disability rating for codes 5003 and 5284, for moderate limitation of motion due to pain.  

   c. The PEB also considered his medical conditions of post-traumatic stress disorder (PTSD), the effects of a gun-shot wound to his left foot, and hypertension; however, these conditions were found to meet medical retention standards and did not impose unreasonable requirements on the military to maintain or protect the applicant.  Accordingly, they were not considered to be unfitting and were not rated.  

   d. Item 9 shows the board recommended he be separated with entitlement to severance pay.  

   e. Item 10 of his DA Form 199 contains the entry, "If retired because of disability, the board makes the recommended finding that:"

      1. Item 10a states "the Soldier’s retirement is based on disability from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurring in line of duty during a period of war as defined by law." 

      2. Item 10b states "evidence of record reflects the Soldier was not a member or obligated to become a member of an armed force or a Reserve thereof, or the NOAA or the USPHS on 24 September 1975."

      3. Item 10c states "disability did result from a combat related injury as defined in Title 26, U.S. Code (USC), section 104 (26 USC § 104) and for purposes of Title 10, USC, section 10216(G) (10 USC § 10216)."

      4. Item 10d states "disability was not incurred in a combat zone or incurred during performance of duty in combat-related operations as designated by the Secretary of Defense (National Defense Authorization Act of 2008 (NDAA 2008), section 1646)." 

   f. Item 13 (Election of Soldiers) shows he concurred with the board's findings and recommendation and waived his right to a formal hearing in his case.  He elected to receive disability severance pay, and he and his counselor authenticated the DA Form 199 by placing their signatures in the appropriate places.  

   g. Item 14 shows the following entry as an indication of proper counsel and the statement is signed by the applicant and his representative:

I have informed the Soldier of the findings and recommendations of the PEB and explained to him the result of the findings and recommendations and his legal rights pertaining thereto.  The Soldier has made the election(s) shown above.

4.  On 1 February 2012, the applicant was honorably discharged in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4 by reason of physical disability with entitlement to severance pay, non-combat related.  The DD Form 214 he was issued shows he was awarded severance pay.  Additionally, item 26 (Separation Code) of this form shows the entry "JFO." 

5.  Army Regulation 635-40 provides that a disability must have resulted from injury or disease received in line of duty, as a direct result of armed conflict, which itself renders the Soldier unfit.  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 line of duty during a period of war.  A determination that a disability was caused by an instrumentality of war and incurred in 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.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty. 

7.  Public Law 110-181, effective 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.

8.  The Under Secretary of Defense memorandum, dated 13 March 2008, established four new SPD codes, one for standard use and one for use by the DES (Disability Evaluation System) 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.  SPD Code "JFO" identifies Soldiers separated under chapter 4 of Army Regulation 635-40 for non-combat related disability with entitlement to severance pay.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his narrative reason for separation should be corrected to show his disability was combat-related. 

2.  The applicant sustained a foot injury following an airborne training jump in Grafenwoehr, FRG.  The PEB determined he was physically unfit for further military service and recommended separation with entitlement to severance pay. 

3.  The applicant's injury, sustained during an airborne operation, is considered hazardous duty and/or a simulation of war, and may qualify a retiree for Combat Related Specialty Compensation (CRSC).  In this context, the injury would be a combat-related injury.  

4.  The PEB determined that item 10d of the DA Form 199 should state "No."  This determination is relatively new and was made subsequent to the 2008 NDAA.  In order for his specific injury to be a "Yes," his injury must have occurred/sustained during combat or in a combat zone.  This determination pertains to members being discharged with severance pay.  In this context the applicant's injury is non-combat related.  

5.  When the 2008 NDAA specified this new potential benefit for those being medically separated with severance pay, four new SPD codes were created.  The applicant was appropriately assigned SPD "JFO" which then automatically dictated his narrative reason for separation as "non-combat." 

6.  The applicant’s physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB.  There is no error or injustice in this case.  In view of the circumstances in this case, there is insufficient evidence to grant him 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)                                         AR20090012834



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ABCMR Record of Proceedings (cont)                                         AR20130011797



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