IN THE CASE OF:	  

		BOARD DATE:	  24 February 2015

		DOCKET NUMBER:  AR20140008737 


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 23 (Type of Separation) – medical retirement instead of discharge
* item 26 (Separation Code) – RFJ instead of JEB
* item 28 (Narrative Reason for Separation) – Permanent Disability, Severance Pay, Non-Combat, instead of Disability, Severance Pay, 
Non-Combat (Enhanced)

2.  The applicant states:

* he is permanently disabled
* he has tried to enlist, but personnel at the Chicago Military Entrance Processing Station told him he is permanently disabled at this point and he should seek medical retirement

3.  The applicant provides:

* extracts of his military medical records and Department of Veterans Affairs (VA) medical records
* VA Form 21-0819 (VA/Department of Defense (DOD) Joint Disability Evaluation Board Claim)
* VA Disability Evaluation System (DES) Proposed Rating, dated 26 August 2011
* VA rating letter, dated 29 August 2011
CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 3 August 2009.  He completed training and was awarded military occupational specialty (MOS) 68J (Medical Supply).

2.  On 2 February 2011, he underwent a medical evaluation board (MEB) for chronic low back pain.  The MEB determined the following and referred him to the Integrated DES (IDES):

* his chronic low back pain would be significantly aggravated with wear of individual body armor and moving with full gear
* heavy lifting which was required frequently in his MOS aggravated his pain
* his chronic low back pain prevented him from performing all aspects of his MOS
* it was unlikely that he would continue his current service without ongoing Soldier and MOS limitations

3.  On 7 March 2011, he executed a VA Form 21-0819 indicating his desire to have his case considered by the VA/DOD Joint Disability Evaluation Board.

4.  On 26 August 2011, he was processed through the IDES.  The VA recommended:

* a 10-percent disability rating for thoracolumbar spine degenerative disc disease (also claimed as lumbago)
* a 10-percent disability rating for right shoulder acromioclavicular (AC) joint sprain
* a 10-percent disability rating for left knee sprain

5.  On 26 September 2011, a physical evaluation board (PEB) found him unfit for the condition of degenerative arthritis of the lumbar spine and recommended a disability rating of 10-percent and separation with severance pay.  The PEB found his right shoulder AC joint pain and left knee sprain met retention standards and were not unfitting conditions.

6.  On 28 September 2011, he concurred with the findings of the PEB and he waived his right to a formal hearing.

7.  On 25 October 2011, he was honorably discharged with severance pay due to a non-combat related disability.  His DD Form 214 shows in:

* item 23 – Discharge
* item 25 (Separation Authority) – Army Regulation 635-40, chapter 4
* item 26 – JEB
* item 28 – Disability, Severance Pay, Non-Combat (Enhanced)

8.  The available records are void of and the applicant failed to provide any evidence showing he appealed his 10-percent disability rating for thoracolumbar spine degenerative disc disease to the VA.

9.  Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, provides that for the separation of an individual found to be unfit by reason of physical disability, he or she must be unable to perform the duties of his or her office, grade, rank, or rating.  Members with conditions listed in this chapter are considered medically unfit for retention on active duty and are referred for disability processing.

10.  Army Regulation 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 member is unfit because of physical disability to perform the duties of his or her office, grade, rank, or rating.

	a.  The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.

	b.  The medical treatment facility commander with primary care responsibility evaluates those referred to him or her and, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refers the member to an MEB.  Those members who do not meet medical retention standards are referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition.

	c.  Paragraph 3-2b(1) states that when a member is being separated by reasons other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit.  This presumption may be overcome only by clear and convincing evidence that he or she is unable to perform his or her duties for a period of time or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, renders the member unfit.

11.  The DES Pilot Operations Manual establishes the scope, policy, responsibilities, and execution instructions for the DES Pilot.
	a.  Paragraph 4.2 states that for the purpose of the DES Pilot, the Military Secretary concerned will use the VA disability ratings awarded to each of the military unfitting conditions to determine the combined Department of Defense disability rating for all military unfitting conditions.

	b.  Paragraph 5.4.6 states the Secretaries of the Military Departments shall accept the disability rating(s) awarded for each of the military unfitting condition(s) rendered by the VA DES rating activity site in determining separation and other administrative matters including final disposition from the Temporary Disability Retired List.

	c.  Paragraph 5.4.8 states the Secretaries of the Military Departments shall correct the records of veterans who successfully appeal their ratings to the VA, using the appropriate Military Department Board for Correction of Military Records.

12.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of a disability incurred while entitled to basic pay.

13.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent.

14.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish error or injustice on the part of the Army.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  Furthermore, unlike the U.S. Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The U.S. Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career, while the VA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

15.  The Fiscal Year 2008 National Defense Authorization Act (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 the 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.  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.  Military Departments shall ensure the appropriate severance pay is calculated in accordance with Title 10, U.S. Code, section 12, and is paid.

16.  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 Pilot (Enhanced).  The new SPD codes reflect the categorization of combat-related disability directed by Public 
Law 101-181 and will be entered on the DD Form 214 of all service members with disabilities incurred in a combat-related operation.

	a.  The 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 Public Law 110-181, section 1646 (retirement is not authorized – DES Pilot (Enhanced)).

	b.  The 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 Public Law 110-181, section 1646 (retirement is not authorized – DES Pilot (Enhanced)).

17.  Army Regulation 635-5-1 (Separation Program Designator Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The primary purpose of SPD codes is to provide a statistical accounting of reasons for separation.  The SPD code RFJ is assigned for permanent disability – retired.

18.  All Army Activities Message 147/2008, dated 13 June 2008, subject:  Implementation of new SPD codes for the disability-related provisions of the 2008 NDAA and the DES Pilot Program, implements new SPD codes for the disability-related provisions of the 2008 NDAA and the DES Pilot Program.  This message states the 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 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 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 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.

	d.  SPD code JEB is appropriate 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 applicant underwent an MEB that referred him to a Joint VA/DOD disability evaluation.  He concurred with the referral.

2.  The VA assigned a 10-percent disability rating to his condition of thoracolumbar spine degenerative disc disease.  The PEB found this condition unfitting and determined he was physically unfit for further military service and recommended his separation with entitlement to severance pay.  He was counseled and concurred with the PEB's findings and recommendations and, accordingly, he was separated.

3.  His records are void of and he failed to provide any evidence indicating he appealed his 10-percent disability rating for thoracolumbar spine degenerative disc disease to the VA.  The Army Board for Correction of Military Records does not have the jurisdiction to change the percentage of disability rendered by the VA unless the rating has been successfully appealed to the VA.

4.  The applicant's physical disability evaluation was conducted in accordance with applicable law and regulations.  There is no error or injustice in this case.  The applicant was appropriately assigned the SPD code of JEB based on his narrative reason for separation.  Further, he is not entitled to retirement based on his assigned SPD code.  In view of the evidence in this case, there is an insufficient basis for granting 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 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)                                         AR20140008737



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ABCMR Record of Proceedings (cont)                                         AR20140008737



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