IN THE CASE OF: 

		BOARD DATE:	    24 April 2014

		DOCKET NUMBER:  AR20130013711 


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 that her DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show her disability was combat related.

2.  The applicant states her Physical Disability Information Report reflects that her disability resulted from a combat-related injury as defined by Title 10, U.S. Code, section 104. 

3.  The applicant provides a copy of her DD Form 214 and Physical Disability Information Report.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 17 July 2001.  She completed her training as a radio and communications security repairer and remained on active duty through a series of continuous reenlistments.  She was promoted to the pay grade of E-6 on 1 June 2010 and her records show that she deployed to Iraq during the periods 20040224 – 20050316, 20061021 – 20071218, and 20081217 – 20100107.

2.  On 14 October 2011, a Physical Evaluation Board (PEB) convened and determined that the applicant’s diagnosed condition of arthritis left knee, degenerative was unfitting and assigned her a 20% disability rating.  The PEB noted that the onset of the applicant’s condition was April 2002, during airborne training that was further injured during combatives training in 2010, during a period of war.

3.  The PEB found her disability to be 20% service-connected and recommended that she be discharged with severance pay.  The PEB also determined that her disability was not based on an injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war.  The applicant concurred with the findings and recommendation of the PEB and waived a formal hearing of her case.

4.  The physical disability information report the applicant provided with her application shows her disability resulted from a combat-related injury as defined in Title 26, U. S. Code, section 104. 

5. Accordingly, she was honorably discharged on 12 February 2012 under the provisions of Army Regulation 635-40, chapter 4, due to disability with severance pay, non-combat related, with a separation program designator (SPD) code of JFO.  She had served 10 years, 6 months, and 26 days of active service and was paid $70,230.60 in severance pay benefits.  Her discharge orders specified that her disability was not incurred in a combat zone or incurred during the performance of duty in combat-related operations designated by the Secretary of Defense (Fiscal Year 2008 National Defense Authorization Act, section 1646).

6.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states that in making a determination whether a disability should be classified as being incurred during an armed conflict or due to an instrumentality of war, the following must be considered: 

	(1) The disability resulted from injury or disease received in the line of duty as a direct result of armed conflict and which itself renders the Soldier unfit.  A disability may be considered a direct result of armed conflict if:

		(a) The disability 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; while the Soldier was interned as a prisoner of war or detained against his will in the custody of a hostile or belligerent force; or while the Soldier was escaping or attempting to escape from such prisoner of war or detained status.

		(b) A direct causal relationship exists between the armed conflict or the incident or operation, and the disability.

	(2) The disability is unfitting, was caused by an instrumentality of war, and was incurred in the line of duty during a period of war as defined by law.  

7.  Title 26, U. S. Code, section 104 (Compensation for injuries and sickness) provides, in pertinent part, that “combat-related” is defined as personal injury or sickness which is incurred while engaged in extra-hazardous service, under conditions simulating war, or which is caused by an instrumentality of war. 

8.  The 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.  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. 

9.  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” 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that her DD Form 214 should be corrected to show that her disability is combat-related has been noted.

2.  The evidence of record in this case is the PEB Proceedings.  It clearly shows that her disabilities were not incurred as a direct result of armed conflict or caused by an instrumentality of war although it appears to have been a combat-related injury, and Title 26, U. S. Code, section 104 relates to how her compensation is applied.

3.  However, her injuries were not incurred in a combat zone, and therefore her DD Form 214 is correct. 


4.  Accordingly, it appears that her narrative reason for separation and SPD are correct and that there is no basis to make the correction she is requesting.     

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X___  ____X___  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of her service in arms.



      _______ _  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)                                         AR20130013711



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ABCMR Record of Proceedings (cont)                                         AR20130013711



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