BOARD DATE:	    20 May 2014

		DOCKET NUMBER:  AR20130015699 


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 item 26 (Separation Code) and item 28 (Narrative Reason for Separation) on his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  He states the entries in item 26 and item 28 on his DD Form 214 are incorrect.  Paragraphs f and g of the Additional Instructions section of his discharge orders show the entry "yes."  Paragraph g shows he was discharged for a disability that resulted from a combat injury as defined by law in Title 26, U.S. Code, Section 104 (26 USC 104).  The narrative reason for separation on his DD Form 214 does not match his discharge orders.  A correct DD Form 214 would have entitled him to 6 years of severance pay instead of the 5 years of severance pay that he was given.  Also, the severance pay would not be recoupable with the correct Separation Program Designator (SPD) code.  The entries on his DD Form 214 in question are clear and unmistakable errors.

3.  He provides his DD Form 214 and his discharge orders.

CONSIDERATION OF EVIDENCE:

1.  On 15 January 2008, the applicant enlisted in the Regular Army.  He was trained in and awarded military occupational specialty 92R (Parachute Rigger).  

2.  On 23 March 2012, a Physical Evaluation Board (PEB) found him unfit to perform the duties of a parachute rigger based on two diagnoses:  left shoulder strain with left bicep tendonitis and lumbar and thoracic degenerative disc disease with radiculopathy.  The PEB noted that the onset of each condition was during Airborne School training in April 2008.  He had injured his back and both shoulders following a difficult landing.  The PEB recommended a combined rating disability rating of 20 percent (%) and that he be separated with severance pay.   

3.  Item 10 (If retired because of disability, the board makes the recommended finding that:) of the DA Form 199 (PEB Proceedings) documenting the PEB decisions shows the following entries:

	a.  10a – "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."

	b.  10c – "Disability did result from a combat related injury as defined in 26 USC 104 and for purposes of 10 USC 10216g [Title 10, U.S. Code, Section 10216(g)]."

	c.  10d – "Disability 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 (NDAA [National Defense Authorization Act] 2008 [Section] 1646)"

4.  On 12 April 2012, he concurred with the PEB findings and waived his right to a formal hearing of his case.  On 17 April 2012, the PEB findings and recommendations were approved for the Secretary of the Army.

5.  On 9 May 2012, Headquarters, U.S. Army Garrison, Fort Bragg, Fort Bragg, NC, issued Orders 130-0264 discharging him effective 16 July 2012.  The Additional Instructions section of the orders shows in:

	a.  paragraph d, he was authorized disability severance pay in pay grade E-5 based on 4 years, 6 months, and 2 days of service; 

	b.  paragraph f, "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:  Yes";

	c.  paragraph g, "Disability resulted from combat related injury as defined in 26 USC 104:  Yes"; and

	d.  paragraph i, "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."
6.  On 16 July 2012, he was honorably discharged as ordered after completing 4 years, 6 months, and 2 days of net active service.  His DD Form 214 shows in:

* item 18 (Remarks – he was authorized disability severance pay in the amount of $24,876.00
* item 25 (Separation Authority) – Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4
* item 26 – "JEB"
* item 28 – "DISABILITY, SEVERANCE PAY, NON-COMBAT (ENHANCED)"

7.  His record is void of documentation showing his disability was incurred while serving in a combat zone or while performing duty in a combat-related operation so designated by the Secretary of Defense.  

8.  The 2008 NDAA provided for enhancement of disability severance pay for members of the Armed Forces.  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.  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 and accompanying narrative reasons for separation to be entered on the DD Form 214 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)

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, subject:  Physical Disability Evaluation, states:
	a.  A physical disability evaluation shall include a recommendation or final decision and supporting documentation on whether the injury or disease that makes the member unfit or that contributes to unfitness was incurred in combat with an enemy of the United States; or was the result of armed conflict; or was caused by an instrumentality of war during a period of war.  These determinations pertain to whether a military retiree later employed under Federal Civil Service is entitled to the various benefits under Title 5, U.S. Code.  

	b.  A 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 26 USC 104.  A physical disability shall be considered combat-related if it makes the member unfit or contributes to unfitness 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.  The Department of Defense Financial Management Regulation (DOD FMR), Volume 7a, chapter 35, provides the criteria for disability severance pay.  It states there is no minimum amount of performed service time required to be eligible for disability severance pay.  The member’s separation orders will specify the total combined years of active service and inactive duty points to be counted in computing severance pay.  Round this total to the nearest whole year, with 6 months or more rounded up.  The maximum number of years of service for computing the disability severance pay will be 19 years.  The minimum number of years for computation purposes shall be:

	a.  six years in the case of a member separated from the Armed Forces for a disability incurred in the line of duty in a combat zone (as designated by the Secretary of Defense) or incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense, or

	b.  three years in the case of any other member.

13.  The DOD FMR, Volume 7a, chapter 35, also states that the Department of Veterans Affairs (VA) deducts disability severance compensation from any VA compensation for the same disability to which the member or member’s dependents become entitled under any law administered by the VA.  There are two exceptions:

	a.  No deduction will be made in the case of disability severance pay received by a member for a disability incurred in the line of duty in a combat zone or incurred during performance of duty in combat-related operations as designated by the Secretary of Defense.

	b.  No deduction will be made from any death compensation to which a member's dependents become entitled after the member's death.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for correction of item 26 and item 28 on his DD Form 214.

2.  The applicant's injuries met the criteria to make him eligible for certain Federal employee benefits under Title 5 USC and to exclude his disability severance pay from his gross income under 26 USC 104.  However, these determinations are independent of the determination that his disability was not incurred in a combat zone and was not incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense under the provisions of the 2008 NDAA, Section 1646.  

3.  The PEB determined that his disabling conditions were not incurred while serving in a combat zone or during the performance of duty in combat-related operations designated by the Secretary of Defense.  As a result, his disability severance pay was calculated using the time he actually served (rounded up to 5 years) and his disability severance pay will be deducted from any VA compensation he receives for the disabilities for which he was discharged.  The available evidence supports the PEB determination.  

4.  The reason for discharge and SPD code entered on his DD Form 214 are correct.  This being the case, there is no basis upon which to grant the relief he has requested.  

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)                                         AR20130015699





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130015699



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1