IN THE CASE OF:  	  

		BOARD DATE:  20 October 2015  	  

		DOCKET NUMBER:  AR20150003384 


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 records as follows: 

* payment of severance pay be calculated based on E-6 with 13 years vice 3 years and 2 months
* his disability was incurred in a combat zone during the performance of combat operations

2.  The applicant states he received an authorized severance payment that was calculated based on E-6 pay grade with 3 years and 2 months of service.  This was incorrect.  The correct years should reflect 13 years.  The correct information has been submitted into the system by his unit administrator.  Also reflected on his disability orders that the disability was not incurred in a combat zone or incurred during the performance of duty in combat-related operations was recorded.  He was injured during the mobilization phase at Fort Dix, NJ, for his second deployment to Operation Enduring Freedom.

3.  The applicant provides:

* DA Form 2173 (Statement of Medical Examination and Duty Status)
* Line of Duty Determination 
* Orders D283-01

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born in January 1961.
2.  Having had prior service in the Regular Army (October 1980 to October 1984), the applicant enlisted in the U.S. Army Reserve (USAR) on 28 November 2001.  He held military occupational specialty 62E (Heavy Construction Equipment Operator). 

3.  He served through multiple reenlistments in a variety of stateside or overseas assignments, including Kuwait/Iraq from 25 April 2003 to 17 June 2003.  He attained the rank/grade of staff sergeant/E-6. 

4.  He entered active duty on 30 November 2008 and he was assigned to Fort Dix, NJ for mobilization training.  He provides a DA Form 2173, dated 3 January 2009 that shows he sustained an intervertebral disc degeneration lumbosacral injury in November 2008.  This injury was determined to be in line of duty. 

5.  In early 2014, a medical evaluation board (MEB) convened and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found that the applicant had the medically unacceptable condition of degenerative disc disease, lumbar spine.  The MEB referred him to a physical evaluation board (PEB).  

6.  On 9 May 2014, an informal PEB convened, as part of the Integrated Disability Evaluation System, and found the applicant's condition prevented him from performing the duties required of his grade and specialty and determined he was physically unfit by reason of degenerative disc disease, lumbar spine.  The DA Form 199 (PEB Proceedings) shows: 

	a.  The condition was onset while the applicant was on active duty at Fort McCoy, WI in 2008.  He injured his back while wearing interceptor body armor.  He received treatment in the form of medications, epidural steroid injections, cryotherapy, traction, profiles, and chiropractic and physical therapy.  Despite the treatment, his pain was not anticipated to improve.  Reasonable performance requires him to perform all functional activities.  His condition has profile limitations of the functional activities.  He is unable to reasonably perform all functional activities.   

	b.  The PEB rated him under the Department of Veterans Affairs Schedule for Rating Disabilities Code 5243, degenerative disc disease, lumbar spine, and accepted the rating of 10 percent proposed.  The PEB recommended the applicant's separation with entitlement to severance pay, if otherwise qualified.  

7.  The applicant's DA Form 199 contains the following entries in Section V (Administrative Determinations):  The PEB makes the following findings: 

* 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 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 or the U.S. Public Health Service on 24 September 1975
* the disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104 (26 USC 104) or 10 USC 10216
* 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 (10 USC 1212)

8.  His PEB was approved by an official at the U.S. Army Physical Disability Agency (USAPDA) on behalf of the Secretary of the Army.  Accordingly, on 10 October 2014, the USAPDA published Orders D283-01 discharging him from the USAR effective 14 November 2014 with severance pay.  The orders stated: 

* authorized disability severance pay in grade E-6 based on 3 years, 2 months, and 27 days of service computed under 10 USC 1208
* disability resulted from a combat-related injury as defined in 26 USC 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 (10 USC 1212, National Defense Authorization Act (NDAA) 2008, section 1646): No

9.  An advisory opinion, dated 2 April 2015, was received on from the USAPDA in the processing of this case.  An advisory official stated: 

	a.  The applicant provided an updated AHRC Form 249-E (Chronological Statement of Retirement Points) which reflects his most current military service (13 years, 2 months, and 10 days of qualifying service and/or 2,450 total retirement points).  Based on that document, his severance pay orders have been corrected to reflect the new proper length of service and the orders have been distributed to the proper financial and reserve authorities for implementation. 

	b.  The applicant was diagnosed with degenerative disc disease which was discovered while undergoing pre-deployment training.  There is no listing of any specific incident of training in his medical records that reflects how this disease was incurred.  His PEB determined the preponderance of the evidence did not support that this unfitting condition was a direct result of combat training, caused by an instrumentality of war, was the result of a specific act or combat training, or was incurred in a combat zone.  He concurred with the PEB's findings and waived his right to formal hearing.  He has not provided material evidence that would establish, by the preponderance of the evidence that his degenerative disc disease met any of the above listed criteria. 

10.  On 30 March 2015, USAPDA published Orders D089-21 amending Orders D283-01 discharging him from the USAR effective 14 November 2014 with severance pay to show the applicant is authorized disability severance pay in grade E-6 based on 6 years, 9 months, and 20 days of service computed under 10 USC 1208 (2,450 retirement points divided by 360).

11.  The applicant was provided with a copy of this advisory opinion but he did not respond.  

12.  Army Regulation 635-40 establishes the disability system.  Appendix D of Army Regulation 635-40 provides instructions for completion of the DA Form 199.  Chapter 4 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.

13.  26 USC 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.
14.  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 10 USC 1212, and is paid.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to show his disability condition was combat related and his severance pay paid based on completion of 13 years of service.  

2.  The applicant's records show he completed 13 years, 2 months, and 10 days of qualifying service for retired pay and/or 2,450 total retirement points.  He did not complete 13 years of active service.  For the purpose of payment of severance pay under 10 USC 1208 the total number of retirement points is divided by 360, which equals 6 years, 9 months, and 20 days.  He was already issued amendment orders reflecting his updated years of service and his orders had already been disseminated to the financial and reserve organizations affected by this action. 

3.  The applicant was diagnosed with degenerative disc disease which was discovered while undergoing pre-deployment training.  There is no listing of any specific incident of training in his medical records that reflects how this disease was incurred.  His PEB determined the preponderance of the evidence did not support that this unfitting condition was a direct result of combat training, caused by an instrumentality of war, was the result of a specific act or combat training, or was incurred in a combat zone.  He concurred with the PEB's findings and waived his right to formal hearing.  He has not provided material evidence that would establish, by the preponderance of the evidence that his degenerative disc disease met any of the above listed criteria.  

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)                                         AR20150003384





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20150003384



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1