IN THE CASE OF: 

		BOARD DATE: 2 September 2014

		DOCKET NUMBER:  AR20140001120


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:

* he was awarded the Afghanistan Campaign Medal instead of the American Campaign Medal
* the narrative reason for his separation as combat-related
* the reentry eligibility code (RE) code as "1" instead of "3" 

2.  The applicant states he believes his record is in error because someone pressed the wrong buttons when filing out his paperwork.

3.  The applicant provides a copy of his DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings).

CONSIDERATION OF EVIDENCE:

1.  After having had prior service, the applicant enlisted in the Regular Army on 
6 March 2008.  He held military occupational specialty (MOS) 31B (Military Police). 

2.  On 27 December 2012, an informal PEB found him unfit for duty due to right shoulder pain with limited motion post Bankart repair and biceps tenodesis.  The DA Form 199 reads:

	a.  Section II (Recommended Disposition):  The board found him physically unfit and recommended a rating of 10% and separation with severance pay.

	b.  Section III (Disability 1):  Right shoulder pain with limited motion status  post Bankart repair and biceps tenodesis.  This is not a combat injury and was not incurred in a combat zone, but was a combatives injury.  Right shoulder injury in October 2008 during combatives involving pugil sticks.  Despite surgeries, medication, physical therapy, and active restrictions, pain continues to interfere with successful performance of required duties.  Condition is unfitting for Soldier in MOS 31B as it impairs his ability to perform warrior tasks and battle drills including the wear of protective gear.  

	c.  Section V Administrative Determinations); The PEB makes the following findings:

		(1)  "The disability disposition is based on disease or injury incurred in the line of duty in combat with an enemy of the U.S. and as a direct result of armed conflict or caused by a instrumentality of war and incurred in the line of duty during a period of war (5 USC 8332, 3502 and 6303).  This determination is made for all compensable cases but pertains to potential benefits for disability retirees employed under Federal Civil Service.

		(2)  "The disability did result from a combat-related injury under the provisions of 26 USC or 10 USC 10216."

	d.  Section IX (Soldier's Election):  He concurred and waived a formal hearing of his case.

3.  Installation Management Command, Headquarters, U.S. Army Garrison, Fort Carson, Colorado, Orders 010-0002, dated 10 January 2013, directed the applicant be reassigned to the Fort Carson Transition Center and discharged effective 18 March 2013.  The Additional Instructions read in:

	a.  Item d:  "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 wars defined by law:  Yes."

	b.  Item e.  "Disability resulted from a combat related injury as defined in
26 USC 104:  Yes."

	c.  Item g:  "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 Sec 1646):  "No."

4.  The applicant was honorably discharged effective 18 March 2013 as a sergeant/E-5.  He had completed a total of 5 years, 5 months, and 19 days of active duty service and 1 year, 2 months, and 11 days of inactive service.  His DD Form 214 shows in:

	a.  item 13 (Decorations, Medals, Badges, Citations and Campaign Medals Awarded or Authorized:  The American Campaign Medal is listed as one of his authorized awards;

	b.  item 18 (Remarks):  "SERVICE IN AFGHANISTAN 20090512-20100514"; 

	c.  Item 25 (Separation Authority): "AR 625-40, CHAP 4";

	d.  Item 26 (Separation Code):  "JEB";

	e.  Item 27 (RE Code):  "3"; and

	f  Item 28 (Narrative Reason for Separation):  "DISABILITY, SEVERANCE PAY, NON-COMBAT (ENHANCED).

5.  Army Regulation 600-8-22 (Military Awards) states the:

	a.  American Campaign Medal is awarded for qualifying service in the American Theater between 7 December 1941 and 2 March 1946.  

	b.  Afghanistan Campaign Medal is awarded to members who have served in direct support of Operation Enduring Freedom (OEF).  The area of eligibility encompasses all the land area of the country of Afghanistan and all air spaces above the land area.  The period of eligibility is on or after 11 September 2001 to a future date to be determined by the Secretary of Defense or the cessation of OEF.  A bronze service star is authorized for wear with this medal for participation in each credited campaign.  Approved designated Afghanistan campaigns are:

* Consolidation II (1 October 2006-30 November 2009)
* Consolidation III (1 December 2009 – 30 June 2011)

6.  Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System 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.

7.  The Fiscal Year (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 (emphasis added).  The determination of "incurred during performance of duty in combat-related operations" shall be made consistent with the criteria of the law.  This provision applies to members not disability separated or retired as of 28 January 2008.  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.

8.  Department of Defense Instruction 1332.38, subject:  Physical Disability Evaluation, states 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 Title 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

9.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard.  Table 3-1 includes a list of RE codes.

* an RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at the time of separation, but disqualification is waivable – they are ineligible unless a waiver is granted

10.  ALARACT (All Army Activities) Message 147/2008, dated 13 June 2008, Subject:  Implementation of new separation SPD codes for the disability-related provisions of NDAA 2008 and the DES Pilot Program implements new SPD codes for the disability related provisions of the FY 2008 NDAA and the DES Pilot Program.  This message states that the Department of Defense (DOD) memorandum, dated 13 March 2008, directed implementation of the following four new SPD Codes pertaining to the rating of conditions and the calculation of disability severance pay.  It was also directed that SPD Codes of JFI and JFO would replace the SPD Codes of JFL and JEA.  The SPD Code of JEB would also replace the SPD Code of JEL.  The message indicated that regulations would be updated to include the new SPD Codes.

	a.  SPD Code of "JFI" is appropriate when the narrative reason for discharge is disability, severance pay, combat-related, and the authority is Army Regulation 635-40, chapter 4; 

	b.  SPD Code of "JFO" is appropriate when the narrative reason for discharge is disability, severance pay, non-combat related, and the authority is Army Regulation 635-40, chapter 4;

	c.  SPD Code of "JEA" is appropriate when the narrative reason for discharge is disability, severance pay, combat-related (enhanced), and the authority is Army Regulation 635-40, chapter 4; and

	d.  SPD Code of "JEB" is appropriated when the narrative reason for discharge is disability, severance pay, non-combat (enhanced) related, and the authority is Army Regulation 635-40, chapter 4. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant served a qualifying period for award of the Afghanistan Campaign Medal with two bronze service stars.  The medal should be added to his DD Form 214.

2.  He did not serve a qualifying period of service for award of the American Campaign Medal.  This medal should be removed from his DD Form 214.

3.  The evidence of record confirms the applicant was discharged on 18 March 2013 by reason of disability with severance pay due to an injury that occurred in a combatives training session under conditions simulating war.   

4.  Orders 010-0002 discharging him from active duty correctly show his disability resulted from a combat-related injury as defined in 26 USC 104.  These orders also correctly show "No" to indicate his disability was not incurred in a combat zone or incurred during the performance of duty in combat-related operations as designated by NDAA 2008 Section 1646.  In order for this to be "Yes" the injury must have occurred or been sustained during combat or in a combat zone. 
5.  When the FY 2008 NDAA specified potential benefits for those being medically separated with severance pay, four new SPD codes were created.  The applicant's injury, sustained during a combatives training session under conditions simulating war, is considered hazardous duty and/or simulation of war. However, under the 2008 NDAA, in order to differentiate injuries and establish specific entitlements to certain programs, the DOD established specific SPDs for each type of injury.  In the applicant's case, his injury occurred in line of duty and it was caused by an instrumentality of war.  However, the injury did not occur in a combat zone or incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense.  

6.  The applicant's DD Form 214 shows he was appropriately assigned SPD "JEB" which then automatically dictated his narrative reason for separation as "non-combat (enhanced)."

7.  The applicant did not provide any evidence to support changing his RE Code from "3" to "1."

BOARD VOTE:

____X___  ____x___  ____x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by  deleting from his DD Form 214 the American Campaign Medal and adding the Afghanistan Campaign Medal with 2 bronze service stars.


2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so 
much of the application that pertains to changing narrative reason for his separation or the RE Code on his DD Form 214.



      	___________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)                                         AR20110025102



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ABCMR Record of Proceedings (cont)                                         AR20140001120



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