IN THE CASE OF:	   

		BOARD DATE:	  24 July 2014

		DOCKET NUMBER:  AR20130021494 


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 in:

* Item 26 (Separation Code) - "JFI" vice "JFO"
* Item 28 (Narrative Reason for Separation) - "Disability, Severance Pay, Combat Related" vice "Disability, Severance Pay, Non-Combat Related"

2.  He also requests award of the Combat Action Badge. 

3.  The applicant states:

* according to his physical evaluation board, his disability did result from a combat-related injury as defined in Title 26, U.S. Code (USC), section 1-4 and for the purpose of Title 10, USC, section 10216(G)
* his unit was awarded the Combat Action Badge for the time he spent in the combat zone during Operation Iraqi Freedom (OIF) 2008-2009; everyone received the Combat Action Badge except him

4.  The applicant provides his DA Form 199 (PEB Proceedings). 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  With respect to the Combat Action Badge, the applicant's records do not show he was recommended for or awarded the Combat Action Badge.  Paragraph 2-5 of Army Regulation 15-185 (Army Board for Correction of Military Records), the regulation under which this Board operates, states the Board will not consider any application if it determines that the applicant has not exhausted all available administrative remedies.  There is no evidence that the applicant submitted an application for award of the Combat Action Badge to the Commander, U.S. Army Human Resources Command, 1600 Spearhead Division Avenue, Fort Knox, KY  40121-5743, and was denied relief for this award.

	a.  The Combat Action Badge may be requested by letter and must contain the following:

* assignment, attachment, or operational control orders
* a copy of the Soldier's Officer or Enlisted Record Brief
* a copy of the chain of command endorsement
* a one-page narrative description of the qualifying incident
* a certified copy of the DD Form 214
* any other supporting documentation

	b.  Therefore, the issue of the Combat Action Badge will not be discussed further in this Record of Proceedings.

3.  The applicant enlisted in the Regular Army on 20 September 2007 and he held military occupational specialty 92Y (Unit Supply Specialist).  He served in Iraq from 6 December 2008 to 12 March 2009.  

4.  On 19 February 2010, an informal PEB convened and found the applicant's medical condition prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit due to chronic right ankle pain.  The PEB indicated that the onset of this condition was after a hard parachute landing and right ankle injury in March 2008.  He was injured by an instrumentality of war, a military parachute at Fort Benning, GA in March 2008.   

5.  The PEB rated his condition under the Department of Veterans Affairs Schedule for Rating Disabilities and he was granted a 20-percent disability rating for code 5271 (ankle).  The PEB recommended that the applicant be separated with entitlement to severance pay.  His rating was awarded for an injury that did not occur in a combat zone or during combat related operations.

6.  Item 10 of the DA Form 199 PEB Proceedings shows the following entry:  If retired because of disability, the Board makes the recommended finding that: 

	a.  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.  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.

	c.  The disability did result from a combat related injury as defined in 26, USC, section 104. 

	d.  Disability was not incurred in a combat zone or incurred during performance of duty in combat-related operations by the Secretary of Defense (National Defense Authorization Act (NDAA) 2008 Sec 1646)." 

7.  On 24 February 2010, the applicant concurred with the PEB’s finding and recommendation, waived his right to a formal hearing, and elected to receive disability severance pay.  He and his counselor authenticated the DA Form 199 and placed their signatures in the appropriate places.  Additionally, the DA Form 199 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.

8.  On 30 April 2010, the applicant was honorably discharged in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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." 
9.  Army Regulation 635-40 establishes the Army PDES 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 office, grade, rank, or rating.  

10.  Army Regulation 635-40 states the phrase “instrumentality of war” refers to a device primarily designed for military service and intended for use in such service at the time of the occurrence of the injury.  It may also be a device not designed primarily for military service if use of or occurrence involving such a device subjects the individual to a hazard peculiar to military service.  This use or occurrence differs from the use or occurrence under similar circumstances in civilian pursuits.

11.  The Glossary of Army Regulation 635-40 makes the following definitions:

	a.  A combat-related injury is a personal injury or sickness that a Soldier incurs under one of the following conditions:  as a direct result of armed conflict; while engaged in extra-hazardous service; under conditions simulating war; or which is caused by an instrumentality of war.

	b.  Instrumentality of war is a device designed primarily for military service and intended for use in such service at the time of the occurrence of the injury.  It may also be a device not designed primarily for military service if use of or occurrence involving such a device subjects the individual to a hazard peculiar to military service.  This use or occurrence differs from the use or occurrence under similar circumstances in civilian pursuits.  There must be a direct causal relationship between the use of the instrumentality of war and the disability and the disability must be incurred incident to a hazard or risk of the service.

12.  Army Regulation 635-5-1 (Separation Program Designator Codes) states that the separation program designator (SPD) codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  

13.  The 2008 NDAA which became Public Law 110-181, on 28 January 2008, authorizes, in pertinent part, the retirement or separation for disability of members, under provisions applicable to members on active duty for more than 30 days, if the member has six months or more of active service and the disability was not noted at the time of the member's entrance into active duty, unless medical evidence or judgment warrants a finding that the disability existed before the member's entrance on active duty.

14.  The Under Secretary of Defense memorandum, dated 13 March 2008, established four new Separation Program Designator (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. 

	a.  SPD Code of "JFI" for disability, severance pay, combat-related, is appropriate for service initiated discharge in accordance with established directives, resulting from physical disability with combat-related severance pay and entitlement, as amended by section 1646, Public Law 110-181 (Retirement is not authorized).

	b.  SPD Code of "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, as amended by section 1646, Public Law 110-181 (Retirement is not authorized).

	c.  SPD Code of "JEA" for disability, severance pay, non-combat related (Enhanced), is appropriate for service initiated discharge in accordance with established directives, resulting from physical disability with combat-related severance pay and entitlement, as amended by section 1646, Public Law      110-181 (Retirement is not authorized-DES Pilot-Enhanced).

	d.  SPD Code of "JEB" is 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, as amended by section 1646, Public Law 110-181.  (Retirement is not authorized-DES Pilot-Enhanced).

DISCUSSION AND CONCLUSIONS:

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

2.  The applicant sustained an ankle injury during a parachute jump at Fort Benning.  A PEB determined he was physically unfit for further military service and recommended separation with entitlement to severance pay.  He was counseled and concurred with the PEB's findings and recommendations and, accordingly, he was discharged and received severance pay. 

3.  The applicant's injury, sustained during an airborne operation, is considered hazardous duty and/or simulation of war and was caused by an instrumentality of war.  However, his injury was neither incurred in a combat zone nor incurred during the performance of duty in a combat-related operation as designed by the Secretary of Defense.  

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 during the performance of duty in a combat-related operation as designed by the Secretary of Defense.  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)                                         AR20130021494





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130021494



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1