IN THE CASE OF:  	  

		BOARD DATE:  3 February 2015		  

		DOCKET NUMBER:  AR20140010606 


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, in effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his disability status as combat-related vice non-combat elated.

2.  The applicant states he reviewed the 2008 National Defense Authorization Act (NDAA) and he believes his injuries fall under the status of combat-related.  His injuries occurred during deployment.  A mistake was made in determining his disabilities were non-combat related.  His disabilities occurred while training at Fort Bliss for deployment and also while deployed to Iraq.  He is not looking for an increase in his rating; he is only looking for the combat designation.

3.  The applicant provides:

* DD Form 214 
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings)
* DA Form 3947 (Medical Evaluation Board (MEB) Proceedings)
* Multiple Standard Form 600 (Chronological Record of Medical Care)
* DA Form 2173 (Statement of Medical Examination and Duty Status)
* Multiple consults, sick call slips, and chronological records of medical care
* Other service and civilian medical records 

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.  The applicant was born in April 1973.  He previously served in the U.S. Navy from December 1993 to January 1999. 

3.  He enlisted in the Idaho Army National Guard (IDARNG) on 6 May 1999.  He held military occupational specialty 68W (Health Care Specialist).  He executed a 3-year extension on 25 August 2001 and a 6-year reenlistment on 27 January 2005. 

4.  On 7 June 2004, he was ordered to active duty.  He served in Iraq from 
12 November 2004 to 6 November 2005.  He was extended on active duty for medical processing. 

5.  His Narrative Summary (NARSUM), dated 24 March 2008, shows: 

	a.  He complained of left shoulder weakness and pain with weight bearing, left ankle pain, instability and difficulty with prolonged weight bearing, and chronic post-traumatic stress disorder (PTSD).

	b.  He developed insidious onset left shoulder injury with glen humeral instability and scapular winging secondary to repeated wear of the Interceptor Body Armor.  The shoulder condition also sustained multiple sublimations during the deployment period.  He was initially evaluated by a neurologist and diagnosed with left brachial plexitis.  Left shoulder arthroscopic revision Bankart procedure with rotator interval closure on 13 August 2006.  He was determined to be not fit for duty in January 2008 by orthopedics regarding his shoulder.  Neurology determined him not fit for duty in February 2008.

	c.  In March 2007, he was evaluated for chronic left ankle pain, weakness and instability with history of multiple sprains.  He underwent conservative interventions of ankle bracing and therapeutic injection.  Pain symptoms also continued.  After the December 2007 MRI, no further surgical intervention was determined.  He was deemed not fit for duty in January 2008 for his ankle condition.
6.  On 14 July 2008, he underwent an MEB physical examination.  His NARSUM shows: 

	a.  He has a history of left shoulder pain which started in October 2004 while he was deployed.  He denied a specific trauma or injury, except to say that he did have a shoulder dislocation at age 17.  During his deployment, he developed a sharp, increased pain with raising his arm above the shoulder level, as well as overhead use and reaching behind him.  He subsequently underwent surgery in August 2006 for a Bankart revision which was done at Rocky Mountain Surgery in Idaho.  He still feels that his shoulder is loose and unstable.  He has been treated with physical therapy, as well as non-steroidal anti-inflammatory medications and activity modification, with minimal improvement. 

	b.  His left ankle started hurting him in July 2004 and he had multiple ankle sprains.  He continued to have a constant, dull, sharp pain that increases with running or carrying even his child on his shoulder.  He denied any ankle instability.  He has also had physical therapy, as well as medications including non-steroidal anti-inflammatory medications.  He has had activity modification, with minimal improvement.

	c.  His diagnosis is glenohumeral instability, left shoulder, recurrent, with anterior arthosis and brachial plexitis and chronic left ankle instability. 

7.  On 18 July 2008, an MEB convened and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found that the applicant had the below medically acceptable or unacceptable conditions.  The MEB recommended his referral to a PEB.  The applicant was counseled and indicated he did not desire to remain on active duty.  He agreed with the findings and recommendations of the MEB:

* Glenohumeral instability, left shoulder, recurrent, with anterior arthosis and brachial plexitis; did not meet retention standards
* Ankle instability, left, chronic; did not meet retention standards 
* PTSD; met retention standards 

8.  On 31 July 2008, an informal PEB convened at Fort Sam Houston, TX.  The PEB found the applicant's conditions prevented him from performing the duties required of his grade and specialty and determined he was physically unfit.  The PEB rated him under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) as follows: 

	a.  VASRD Codes 5099/5003, left shoulder pain evaluated as arthritis, degenerative.  He had shoulder dislocation at age 17 resulting in repair with good results.  He had a traumatic recurrence of shoulder pain while deployed in 2004 leading to a revised Bankart repair in August 2006.  Continued pain prevented effective duty in primary MOS.  Exam showed good strength and slight instability with satisfactory evidence of painful motion for which rated at 10 percent.  The presumption of permanent service aggravation is not overcome. 

	b.  VASRD Codes 5099/5003, left ankle pain evaluated as arthritis, degenerative.  He had had a series of ankle sprain.  Images led to a modified Brostrum repair in June 2007.  Ankle prevents training for the Army Physical Training Test.  Exam showed antelgic gait, good stability and satisfactory evidence of painful motion for which rated at 10 percent.  

	c.  The PEB also considered his other medical condition (PTSD) as listed on the MEB; however, this condition was not found to be unfitting and therefore it was not rated.  The PEB recommended the applicant's separation with entitlement to severance pay if otherwise qualified.  He was counseled and initially demanded a formal PEB but later withdrew his demand and concurred with the PEB findings and recommendations. 

9.  Although the PEB recommended his separation with entitlement to severance pay, the applicant's DA Form 199 contains the following entries in item 10 (If Retired Because of Disability, the Board Makes the Recommended Finding that):

* the Soldier's retirement is not 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 the line of duty during a period of war as defined by law
* the evidence of record reflects the Soldier was not a member or obligated to become a member of an Armed Forces or Reserve thereof, or the National Oceanic or Atmospheric Administration (NOAA) or the U.S. Public Health Service (USPS) on 24 September 1975
* the disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104
* 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 under NDAA 2008, section 1646

10.  On 5 September 2008, his PEB was approved by an official at the U.S. Army Physical Disability Agency on behalf of the Secretary of the Army.

11.  On 8 December 2008, Headquarters, U.S. Army Garrison, Fort Carson, CO published Orders 343-0020 reassigning him to the U.S. Army Transition Point for separation processing.  The orders stated: 
* disability resulted from a combat related injury as defined in Title 26, U.S. Code, section 104: No
* 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 under NDAA 2008, section 1646: No

12.  On 4 December 2008, the applicant was honorably discharged in accordance with chapter 4 of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of disability, non-combat related, with entitlement to severance pay.  Item 26 (Separation Code) of his DD Form 214 shows the entry "JFO."

13.  Army Regulation 635-40 establishes the 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.  The regulation in effect at the time stated a disability may be considered a direct result of armed conflict if it was incurred while the Soldier was engaged in armed conflict or in an operation or incident involving armed conflict or the likelihood of armed conflict; if a direct causal relationship exists between the armed conflict or the incident or operation and the disability; or if the disability which is unfitting was caused by an instrumentality of war and was incurred in the line of duty during a period of war.  A determination that a disability was caused by an instrumentality of war and incurred in the line of duty will be appropriate only when it is also determined that the disability so incurred in itself renders the member physically unfit and was incurred during one of the periods of war as defined by law.  Appendix D of Army Regulation 635-40 provides instructions for completion of the DA Form 199.

	a.  Block 9:  Select recommendations for disposition of the Soldier from the following statements: "Permanently retired from the service"; "Placed on the TDRL (Temporary Disability Retired List) with reexamination during (month and year)"; "Separated from the military service without entitlement to disability benefits from the service"; "Separate from the service with severance pay if otherwise qualified"; "Retained on the TDRL with reexamination during (month and year)"; "Revert to retired status"; or Other (specify).

	b.  Item 10a:  Make the entry according to the provisions of paragraph 4–19j. Make the entry in all cases other than those on the TDRL although the entry pertains only to Soldiers who will be retired.  For a Soldier on the TDRL, make an entry only if the DA Form 199 placing the Soldier on the TDRL did not indicate a finding.

	c.  Item 10b:  Make the entry in all cases even though block 10b addresses only Soldiers who will be retired.  Check "was" if, on 24 September 1975, the individual was a member of the armed force of any country or Reserve Component (RC) of the armed force; the NOAA; the USPHS; or under a binding written commitment to become such a member.  For a Soldier on the TDRL, make the proper entry only if the DA Form 199 placing him on the TDRL after 24 September 1975 does not indicate a finding.

	d.  Item 10c:  Make the entry in all cases even though block 10c addresses only Soldiers who will be retired.  Refer to paragraph 4–19k and the Glossary to decide which block to check.

	e.  Item 10d: A new entry, make the entry whether the disability was or 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 under NDAA 2008, section 1646.

14.  Paragraph 4-19j of Army Regulation 635-40 states that in making a determination whether a disability should be classified as being incurred during an armed conflict or due to an instrumentality of war, the following must be considered:

	a.  The disability resulted from injury or disease received in the line of duty as a direct result of armed conflict and which itself renders the Soldier unfit.  A disability may be considered a direct result of armed conflict if:

		(1)  the disability was incurred while the Soldier was engaged in armed conflict or in an operation or incident involving armed conflict or the likelihood of armed conflict, while the Soldier was interned as a prisoner of war or detained against his or her will in the custody of a hostile or belligerent force, or while the Soldier was escaping or attempting to escape from such prisoner of war or detained status; and

		(2)  a direct causal relationship exists between the armed conflict or the incident or operation and the disability.

	b.  The disability is unfitting, was caused by an instrumentality of war, and was incurred in the line of duty during a period of war as defined by law.

15.  Title 26 U.S. Code, section 104, states for purposes of this subsection, 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, or under conditions simulating war; or which is caused by an instrumentality of war.
16.  The 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.  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.

17.  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).

18.  Army Regulation 635-5-1 (Separation Program Designator Codes) states that the 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 statistical accounting of reasons for separation.

19.  ALARACT (All Army Activities) Message 147/2008, dated 13 June 2008, Subject:  Implementation of new 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 applicant's primary disabling conditions were left shoulder degenerative arthritis and left ankle degenerative arthritis.  The first condition started at age 17 when suffered a shoulder dislocation.  It was aggravated by service but it did not specifically occur in a combat zone or during combat operations.  Likewise, he sustained a series of ankle sprains throughout his service but not specifically in a combat zone or during combat operations.

2.  His injuries appear to have been caused by physical training, loading equipment, and/or natural progression.  He deployed to Iraq where his injuries appear to have been aggravated.  He returned to the continental United States and despite surgical intervention, therapy, and medications, he continued to experience pain.  He underwent an MEB that referred him to a PEB.  The PEB 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.  The PEB determined that the DA Form 199 in Item 10D should state "No."  This determination and entry on the DA Form 199 was relatively new at the time of the applicant's separation and was made subsequent to the FY 2008 NDAA.  Based on DOD guidance, in order for the applicant's specific injury to be a "Yes," the injury must have occurred or been sustained during combat or in a combat zone, otherwise the injury is categorized as non-combat related.  This determination pertains to members being discharged with severance pay.

4.  When the FY 2008 NDAA specified potential benefits for those being medically separated with severance pay, four new SPD codes were created.  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 arthritis occurred in line of duty and it was aggravated by service.  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.  Therefore, he was discharged as a result of a disability that did not occur in a combat zone which is correctly shown on his DD Form 214.

5.  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.  The applicant was appropriately assigned SPD "JFO" which then automatically dictated his narrative reason for separation as "non-combat."  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)                                         AR20140010606





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ABCMR Record of Proceedings (cont)                                         AR20140010606



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