IN THE CASE OF:	  

		BOARD DATE:	  26 May 2015

		DOCKET NUMBER:  AR20140017831 


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, separation pay and that her DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show, in effect:

* a separation program designator (SPD) code of SEJX instead of SEJ1 [sic, her DD Form 214 shows an SPD code of SEJ and the 1 is not listed]
* a disability rating of at least 45 percent instead of 30 percent
* retired rank/pay grade of staff sergeant (SSG)/E-6 instead of sergeant (SGT)/E-5

2.  The applicant states the SPD code currently shown does not allow her to receive separation pay and this is incorrect.  As noted above, she contends the named items should be corrected.

3.  The applicant provides:

* Separation/Retirement Interview Checklist
* Final Pay Worksheet (Service Member's Copy)
* Defense Finance and Accounting Service (DFAS) Form 702 (DFAS Military Leave and Earnings Statement (LES))
* letter, dated 1 November 2013, from DFAS to the applicant
* Joint Uniform Military Pay System LES Online Inquiry System printout (three pages)
* letter, dated 23 August 2012, from DFAS to the applicant with a five-page attachment
* DD Form 214
* printout from the webpage for the Under Secretary of Defense (Comptroller) which lists Department of Defense (DOD) Financial Management Regulation (FMR) 7000.14-R

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 22 October 2003.  After completing initial training, she was awarded military occupational specialty 92Y (Unit Supply Specialist).  The highest rank/grade held was sergeant/E-5.

2.  On 8 June 2012, a physical evaluation board (PEB) found the applicant physically unfit for continued military service.  The PEB recommended a disability rating of 30 percent for seven referred conditions.  Additionally, the PEB recommended placement on the Permanent Disability Retired List (PDRL).  

	a.  The applicant's case was adjudicated under the joint DOD/Department of Veterans Affairs (VA) Integrated Disability Evaluation System (IDES).  The IDES program was implemented under a DOD policy, dated 21 November 2007, and DOD Directive-Type Memorandum (DTM) 11-015 (IDES).  

	b.  In IDES, the VA determines disability ratings for all conditions referred by the PEB.  On 24 May 2012, the VA granted the applicant the following ratings, resulting in a combined rating of 30 percent:

* chronic lower back pain due to myofasciitis, 10 percent
* chronic right hip pain due to piriformis syndrome, 10 percent
* chronic left hip pain due to piriformis syndrome, 10 percent
* left hip trochanteric bursitis, extension, 0 percent
* left hip trochanteric bursitis, impairment of the thigh, 0 percent
* right hip trochanteric bursitis, extension, 0 percent
* right hip trochanteric bursitis, impairment of the thigh, 0 percent

3.  On 19 June 2012, the applicant concurred with the PEB's findings and waived her right to a formal hearing.  She additionally opted not to request a reconsideration of her disability rating by the VA (emphasis added).

4.  Orders 207-1321, dated 25 July 2012, issued by Headquarters, U.S. Army Training Center and Fort Jackson, stated the applicant was released because of physical disability.


	a.  On 7 August 2012, she was separated and placed on the PDRL effective 8 August 2012.

	b.  Her retired rank/pay grade was SGT/E-5.

	c.  The percentage of disability was 30 percent.

	d.  Retirement type and allotment code was shown as permanent disability/10.

	e.  Her time in service for disability retirement purposes was shown as 8 years, 9 months, and 16 days.

5.  Her DD Form 214 shows she was separated on 7 August 2012.  She completed 8 years, 9 months, and 16 days of net active creditable service.  

	a.  Item 23 (Type of Separation) shows retirement.

	b.  Item 24 (Character of Service) states honorable.

	c.  Item 25 (Separation Authority) lists Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4.

	d.  Item 26 (Separation Code (SPD) shows SEJ.

	e.  Item 28 (Narrative Reason for Separation) states disability, permanent (enhanced).

6.  The applicant's official military personnel file (OMPF) is void of any recommendations for promotion or an order showing the applicant was pending promotion to SSG at the time of retirement.

7.  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 govern the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.

	a.  Chapter 4 outlines the entitlements to benefits.  Its states:

* Title 10. U.S. Code, sections 1201 through 1203 establish the criteria for disability compensation for Soldiers in the RA
* when a Soldier meets the criteria for benefits eligibility and has a rating of less than 30 percent they receive severance pay
* when a Soldier has a rating of 30 percent or more and their conditions are considered stable for rating purposes, they are placed on the PDRL in retired status

	b.  Retired pay for Soldiers who entered active duty after 7 September 1980 is computed on the highest grade satisfactorily held or current grade.

8.  DOD Directive-Type Memorandum (DTM) 11-015 (Integrated Disability Evaluation System (IDES)), in effect at the time, implements the joint DOD-VA process whereby Service members are evaluated to determine physical fitness for continued military service and VA provides the appropriate disability rating.  

	a.  In Appendix 1 to Attachment 4 (Service Member Procedures) it states service members may, on a one-time basis, request reconsideration by VA of their disability ratings.  This request must be made within 10 days of receiving their preliminary disability ratings.  The request must include new medical evidence or sufficient justification of an error to warrant reconsideration (emphasis added).

	b.  Also in Appendix 1 to Attachment 4 it states upon separation for medical disability and consistent with Board for Correction of Military Records (BCMR) procedures, the former Soldier may request correction of her military records when new information regarding her medical condition is made available.  The DTM provides an example where a Soldier obtains a portion of her medical records not earlier available which contains new and relevant information that could result in a change of rating.  If the VA changes the disability rating the Soldier can request the BCMR to correct her military records.  An appeal of the rating decision by the VA is required to be made within 1-year from the date of the notice of the VA rating decision.

	c.  Within attachment 8 is the list of SPD codes to be used for Service members separated under IDES.  The SPD code of SEJ means the Soldier is being mandatorily retired as a result of permanent physical disability.

9.  The Code of Federal Regulation (CFR) 38 (Pensions, Bonuses, and Veterans' Relief) is the codification of the general and permanent rules published in the Federal Register by the Executive departments and agencies of the Federal Government.  Part of CFR 38 implements law and policy for Veterans' disability ratings.  The Combined Ratings Table shows how disability ratings are combined and the numbers are displayed in increments of 10.  All ratings are to be divisible by 10 and, when the combining of disability ratings results in a number not divisible by 10, it is rounded down if less than 5 and rounded up if 5 or more (thus a combined rating of 81 becomes 80 while a combined rating of 85 becomes 90).

10.  DOD Instruction 1332.29 (Eligibility of Regular and Reserve Personnel for Separation Pay) implements law and policy on the payment of separation pay.  Separation pay is paid for Soldiers who are not being separated by reason of physical disability and who meet the following criteria (emphasis added):

* the Soldier is on active duty and has completed at least 6 years; but fewer than 20 years of active service
* the Soldier's characterization of service is honorable
* the Soldier is being involuntarily separation either through a denial of reenlistment or a denial for the continuation of active service
* the Soldier has entered into a written agreement to serve in the Ready Reserve for a period of not less than 3 years

11.  DOD FMR 7000.14-R directs statutory and regulatory financial management requirements, systems, and functions for all appropriated and non-appropriated, working capital, revolving, and trust fund activities.  It shows separation pay in the context of being "nondisability."  It also states military members who receive separation pay and, subsequently, qualify for retirement under Title 10, U.S. Code, are subject to recoupment (disability retirement is covered in chapter 61, Title 10, U.S. Code) (emphasis added).  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's requests were carefully considered; but both the evidence of record and that which was submitted by the applicant were insufficient to support the granting of relief.

2.  Regarding separation pay, DOD policy allows for the payment of separation pay in cases not involving disability (emphasis added).  By contrast, eligible Soldiers who are separated due to physical disability can receive severance pay when their combined disability rating is less than 30 percent.  When a rating is 
30 percent or more the Soldier can be temporarily or permanently retired.  In the applicant's case, her rating of 30 percent entitled her to be permanently retired under the provisions of chapter 61, Title 10, U.S. Code, thus precluding her eligibility for the receipt of separation pay.

3.  Regarding the applicant's retirement rank, at the time of retirement, her rank/grade was SGT/E-5.  The regulation permits retirement at the highest rank/grade satisfactorily held.  

	a.  She submits no evidence of having been recommended for promotion to SSG/E-6, being on a promotion list, or having held the rank/grade of SSG/E-6.

	b.  Her OMPF contains no evidence she was on a promotion list or that she held the rank/grade of SSG/E-6 prior to retirement.  

	c.  As such, there is no basis for adjusting her retirement rank/grade.

4.  According the DTM 11-015, the appropriate SPD code for the applicant's case is SEJ.  This is, in fact, the SPD code found on her DD Form 214.  Neither the record nor the applicant offer any evidence that would show this SPD code is incorrect.  Additionally, the SPD code is not shown ending with either a 1 or an X.  Based upon the foregoing, no change should be made to the SPD code found on her DD Form 214.

5.  The applicant's disability rating was determined by the VA and she concurred with the rating on 19 June 2012.  She also chose not to request a VA reconsideration of her disability rating.  In her application she contends her disability rating should now be at least 45 percent.  

	a.  The applicant provides no evidence to support why her rating should be increased.  Even if she did, the VA would be the appropriate agency to address a possible increase based upon her request for reconsideration.  

	b.  The DTM requires a request for reconsideration to be submitted within 10 days of receipt of the preliminary disability ratings.  The applicant had the opportunity to request reconsideration by VA but opted in writing not to do so.  Additionally, the DTM allows the applicant, after her medical retirement, to file an appeal within 1-year of the rating decision.  There is no evidence the applicant submitted an appeal to the VA within the specified timeframe.  As a result, it would not be appropriate to make any changes to her combined disability rating.

	c.  The applicant can file an appeal with the VA to increase the disability ratings she received for both those conditions listed in Section III (Medical Conditions Determined to be Unfitting) of her DA Form 199 (Informal PEB Proceedings) and any others that were identified as service-connected.  Should the VA determine the ratings for the conditions listed in Section III of her DA Form 199 (and only those conditions) should be increased she can reapply to the Board and request correction of her records.  Increases to any other conditions shown as service-connected; but not listed on the DA Form 199 are not within the purview of this Board and, as such, a correction to her military records would not be required.

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)                                         AR20140017831



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ABCMR Record of Proceedings (cont)                                         AR20140017831



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