IN THE CASE OF:
BOARD DATE: 29 April 2014
DOCKET NUMBER: AR20130014233
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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show in item 28 (Narrative Reason for Separation) the entry "Combat-Related."
2. The applicant states that his DD Form 214 should have been prepared to show that his injuries were combat-related because all of his injuries were sustained while deployed to Iraq and he was medically evacuated from Iraq and was in the Wounded Warrior Program at Fort Hood, Texas for over 3 years.
3. The applicant provides no additional documents with his application.
CONSIDERATION OF EVIDENCE:
1. The applicant was serving in the Texas Army National Guard (TXARNG) in the rank of sergeant when he was ordered to active duty on 28 August 2008. He deployed to Iraq/Kuwait during the period 20081115 20090815. He was promoted to the pay grade of E-6 on 8 February 2012.
2. On 20 April 2012, a Physical Evaluation Board (PEB) determined that the applicant had the following unfitting conditions:
* Lumbar Fusion Degenerative Arthritis of cervical spine
* Left Lower Extremity Radiculopathy persistent following lumbar fusion
3. The DA Form 199 (Physical Evaluation Board (PEB) Proceedings) noted that the onset of his back condition occurred while training in preparation for deployment, to include an injury sustained during combatives.
4. The PEB recommended that the applicant be retired by reason of permanent disability with a 30 percent service-connected disability rating. The applicant concurred with the findings and recommendations of the PEB and waived a formal hearing of his case. The DA Form 199 noted that his disability did result from a combat-related injury as defined in Title 26, U.S. Code, section 104. The PEB was approved on 24 May 2012.
5. On 15 July 2012, the applicant was honorably retired under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, by reason of disability, permanent (ENHANCED) and given a separation program designator (SPD) code of SEJ. He had served 3 years, 10 months, and 18 days of active service during his recent call-up and had 4 years and 5 months of prior active service.
6. A review of the available records failed to show that the applicants injuries/illnesses were combat-related.
7. Title 26, U.S. Code (the Internal Revenue Code), section 104 states, in pertinent part, that for purposes of this subsection, the term combat-related injury means personal injury or sickness which 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.
8. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) does not list COMBAT-RELATED as a phrase to be used when the narrative reason for separation is a disability retirement.
DISCUSSION AND CONCLUSIONS:
1. While the applicant was in Iraq when he was evacuated, the available evidence does not show that his injuries/illnesses were combat-related. His DA Form 199 shows he was injured deployment/combatives training, which is a combat-related injury only as defined by Title 26, U.S. Code, for tax purposes.
2. In addition, "COMBAT-RELATED" is not an authorized phrase to be entered in item 28 of the DD Form 214 for disability retirements.
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) AR20130014233
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