IN THE CASE OF:	  

		BOARD DATE:	  7 August 2014

		DOCKET NUMBER:  AR20130021752 


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

2.  The applicant states:

	a.  He believes these items are incorrect because he was injured during hand-to-hand combat training and this is considered to be an instrumentality of war.

	b.  Due to this error, he is required to repay his severance pay to the Department of Veterans Affairs (VA) before receiving his disability pay.

3.  The applicant provides:

* DD Form 214
* VA Compensation and Pension Examination

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 28 October 2009 and trained as a multichannel transmission systems operator/maintainer.

2.  His medical evaluation board proceedings are not available.

3.  On 11 September 2012, an informal physical evaluation board (PEB) found him physically unfit due to right shoulder arthropathy and left shoulder arthropathy.  The DA Form 199 (Informal PEB Proceedings) states he initially injured his right shoulder during combative training in April 2010 during advanced individual training.  He was later seen by his primary care physician for bilateral shoulder pain.  The PEB recommended a 20-percent disability rating and separation from the service with severance pay.  On 9 October 2012, the applicant concurred with the PEB's findings and recommendations and waived a formal hearing.

4.  Section V (Administrative Determinations) of his DA Form 199 states, in part:

	a.  The disability disposition is not based on disease or injury incurred in the line of duty in combat with an enemy of the United States and 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.

	b.  The disability did result from a combat-related injury under the provisions of Title 26, U.S. Code, section 104 or Title 10, U.S. Code, section 10216.

	c.  The disability severance pay was not awarded for disability incurred in a combat zone or incurred while performing combat-related operations as designated by the Secretary of Defense under the provisions of Title 10, U.S. Code, section 1212.

5.  He was honorably discharged from active duty by reason of disability with severance pay, non-combat (enhanced) on 12 February 2013 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4.  He completed 3 years, 3 months, and 15 days of creditable active service.

6.  His DD Form 214 shows in:

* item 25 (Separation Authority) – Army Regulation 635-40, chapter 4
* item 26 (Separation Code) – JEB
* item 28 – disability, severance pay, non-combat (enhanced)

7.  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 Disability Evaluation System (DES) Pilot "Enhanced" Program.  The new SPD codes reflect the categorization of combat-related disability directed by Public Law 101-181 and will be utilized on the DD Forms 214 of all service members with disabilities incurred in a combat-related operation.

8.  All Army Activities Message 147/2008, dated 13 June 2008, subject:  Implementation of New SPD Codes for the Disability-Related Provisions of National Defense Authorization Act (NDAA) 2008 and the DES Pilot Program, implements new SPD codes for the disability-related provisions of the Fiscal Year 2008 NDAA and the DES Pilot Program.  It directed the SPD codes of "JFI" and "JFO" would replace the SPD code of "JFL" and the SPD codes of "JEA" and "JEB" would replace the SPD code of "JEL."

	a.  SPD code "JFI" for disability, severance pay, combat-related, is used for a discharge resulting from physical disability with combat-related severance pay and entitlement.

	b.  SPD code "JFO" for disability, severance pay, non-combat related, is used for a discharge resulting from physical disability with non-combat related severance pay and entitlement.

	c.  SPD code "JEA" for disability, severance pay, non-combat related (enhanced), is used for a discharge resulting from physical disability with combat-related severance pay and entitlement.

	d.  SPD code "JEB" for disability, severance pay, non-combat related, is used for a discharge resulting from physical disability with non-combat related severance pay and entitlement.

9.  NDAA 2008, section 1646 (Enhancement of Disability Severance Pay), provides that no deductions may be made from severance pay of service members rated less than 30-percent disabled with less than 20 years of active duty if the disability severance pay is 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.

10.  Title 26, U.S. Code, section 104, states 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 under conditions simulating war, or which is caused by an instrumentality of war.



11.  The term "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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends items 26 and 28 of his DD Form 214 should be corrected because he was injuring during hand-to-hand combat training and this is considered to be an instrumentality of war.

2.  Medical evidence shows he injured his right shoulder during combative training.  

3.  The PEB determined:

* his disability was the result of an injury received during combative training
* the disability disposition is not caused by an instrumentality of war and incurred in the line of duty during a period of war
* the disability did result from a combat-related injury
* the disability was not incurred in a combat zone or incurred while performing combat-related operations as designated by the Secretary of Defense

4.  There is no evidence in the available records and he has not provided sufficient evidence which shows his disabilities were incurred as a direct result of armed conflict, while engaged in extra hazardous service under conditions simulating war, or was caused by an instrumentality of war.  

5.  Combative training is a version of martial arts training.  It is not a device primarily designed for military service or 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.  Injury during such training could also occur during civilian martial arts training.

6.  In view of the foregoing, he was assigned the appropriate separation code and narrative reason for separation and is not entitled to 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 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)                                         AR20130021752



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ABCMR Record of Proceedings (cont)                                         AR20130021752



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