IN THE CASE OF

		BOARD DATE:	    1 April 2014

		DOCKET NUMBER:  AR20130011930 


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 separation program designator (SPD) code "JFI" or "JEA" in item 26 (Separation Code) and to show in item 28 (Narrative Reason for Separation) that his disability is combat related.  

2.  He states item 28 of his DD Form 214 states his disabilities are not combat related.  He was involved in four improvised explosive device (IED) incidents resulting in a traumatic brain injury (TBI), and he injured his ankle in Iraq during a mortar attack.  He has a Combat Action Badge (CAB).  He has received a service-connected disability rating from the Department of Veterans Affairs (VA) for post-traumatic stress disorder (PTSD), tinnitus, right ankle injury, and post-concussive syndrome.  He needs the requested corrections so he can begin to receive VA benefits for the disabilities incurred in Iraq.

3.  The applicant provides:

* an excerpt of Public Law 110-181 (2008 National Defense Authorization Act (NDAA))
* VA Rating Decision
* his DD Form 214

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior service in the Army National Guard.  On 20 April 2006, he enlisted in the Regular Army.  
2.  His record shows he served in Iraq from 4 February 2007 to 10 April 2008.  During this period he was awarded the CAB for actively engaging or being engaged by the enemy.  

3.  A Medical Evaluation Board Narrative Summary is not available for review with this case.

4.  A DA Form 199 (Physical Evaluation Board (PEB) Proceedings) shows a PEB convened on 28 March 2010 to consider his condition described in the records.  

	a.  The PEB found him unfit for chronic right ankle pain rated as analogous to degenerative arthritis.  The PEB noted, in part:

* this was not a battle injury and did not occur in a combat theater
* the applicant had had multiple sprain-type injuries and had surgical ligament repairs twice

	b.  The PEB considered the condition listed as Medical Evaluation Board (MEB) diagnosis 2 and found that, even though the MEB determined the condition failed retention standards, the condition was not unfitting and therefore not ratable.  The entry regarding MEB diagnosis 2 indicates the diagnosis was post-concussive syndrome resulting from exposure to two IED blasts in Iraq on 27 April 2007.  The PEB noted:

* the MEB had noted that the applicant's headaches, short-term memory issues, insomnia and anxiety disorder all met retention standards
* the applicant had an outstanding Noncommissioned Officer Evaluation Report for the period through August 2009 even though he was on a profile for his ankle
* the mere presence of a condition does not constitute a disability

	c.  The PEB found that conditions listed as MEB diagnoses 3 through 13 were determined to meet retention standards by the medical treatment facility and that further consideration by the PEB found the conditions to be not unfitting and not ratable.  None of these conditions were listed on his physical profile as limiting any of his functional activities and his commander did not consider the conditions to hinder the applicant's performance.  There was no evidence that these diagnoses independently or combined rendered him unfit for his assigned duties.

	d.  The PEB recommended a disability rating of 10 percent (%) and his separation with severance pay.

	e.  The PEB found the applicant's disability:
* was not from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war 
* did not result from a combat-related injury as defined in Title 26, U.S. Code, Section 104 (26 USC 104)
* 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

5.  On 29 March 2010, he concurred with the PEB findings and recommendation and waived a formal hearing of his case.  The PEB findings and recommendations were approved for the Secretary of the Army on 6 April 2010.

6.  On 7 April 2010, Headquarters, 1st Infantry Division and Fort Riley, Fort Riley, KS, issued Orders 097-0021 discharging him effective 18 June 2010.  The "Additional instructions" section of the orders includes the following statements:

* Disability is 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 and incurred in the line of duty during a period of war as defined by law:  No
* Disability resulted from a combat-related injury as defined in 26 USC 104:  No
* 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

7.  On 18 June 2010, he was honorably discharged.  The DD Form 214 issued at that time shows in:

* item 25 (Separation Authority) – "AR 635-40, CHAP 4"
* item 26 – "JFO"
* item 28 – "DISABILITY, SEVERANCE PAY, NON-COMBAT RELATED"

8.  He provides an excerpt of the 2008 NDAA pertaining to enhancement of disability severance pay for members of the Armed Forces.  The excerpted portion of the statute provides that there will be no deduction from compensation of severance pay for disabilities incurred in combat zones or incurred during performance of duty in combat-related operations as designated by the Secretary of Defense.

9.  He provides a VA Rating Decision, dated 10 September 2010, showing he was awarded service-connected disability ratings based on a pre-discharge examination.  He received a combined evaluation of 60% effective 19 June 2010 based on the following ratings:
* PTSD with insomnia, adjustment disorder and depressed mood – 30% 
* right ankle, status post debridement and repair of ligament damage with revision – 20% 
* tinnitus – 10% 
* post-concussive syndrome, status post mild TBI – 10%
* right ankle scar, status post debridement and repair of ligament damage – 0%
* tension headaches – 0%

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

11.  Department of Defense Instruction 1332.38 states physical disability evaluation shall include a determination and supporting documentation on whether the member's physical disability compensation is excluded from Federal gross income under Title 26, U.S. Code 104.  It further states a physical disability shall be considered combat-related if it makes the member unfit or contributes to unfitness (emphasis added) and was incurred under any of the following circumstances:

* as a direct result of armed conflict
* while engaged in hazardous service
* under conditions simulating war
* caused by an instrumentality of war

12.  Title 26, U.S. Code 104 states that for purposes 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 which is caused by an instrumentality of war.

13.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not empowered by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual may have a medical condition that is not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, but that same condition may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

14.  All Army Activities (ALARACT) Message 147/2008, dated 13 June 2008, announced the implementation of new SPD codes for the disability-related provisions of the 2008 NDAA.  It listed four new SPD codes to be used for separations under the provisions of Army Regulation 635-40 as shown below:

* JFI – disability, severance pay, combat related
* JFO – disability, severance pay, non-combat related
* JEA – disability, severance pay, combat related (enhanced)
* JEB – disability, severance pay, non-combat (enhanced)

DISCUSSION AND CONCLUSIONS:

1.  The applicant was discharged with severance pay based on a diagnosis of chronic right ankle pain rated as analogous to degenerative arthritis.  The PEB determined this chronic condition was not incurred as a direct result of armed conflict or caused by an instrumentality of war, did not result from a combat-related injury, and was not incurred in a combat zone or during the performance of duty in combat-related operations.  There is no documentary evidence that contradicts the PEB's finding.   

2.  The PEB only makes combat-related determinations for unfitting conditions.  If a diagnosed condition is determined to be not unfitting and therefore not ratable, there is no reason to make a combat-related determination.  A VA service-connected disability rating for a combat-related condition that a PEB found to be not unfitting is not evidence of an error in the PEB's finding.  

3.  The available evidence supports the SPD code and narrative reason for separation entered on his DD Form 214.  In the absence of evidence showing an error in these entries, there is no basis for granting 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)                                         AR20130011930





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ABCMR Record of Proceedings (cont)                                         AR20130011930



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