BOARD DATE: 5 January 2016 DOCKET NUMBER: AR20150004999 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 his disability was combat-related. 2. The applicant states, in effect, that he was injured during airborne operations and a subsequent hard parachute landing. His DA Form 199 (Physical Evaluation Board (PEB) Proceedings) shows his discharge was combat-related. However, his DD Form 214 incorrectly shows that his discharge was not combat related. Due to this error, the Department of Veterans Affairs (VA) is recouping his military severance pay. He contends that he should be exempt from recoupment of his severance pay because he was discharged after 2008. 3. The applicant provides his DA Form 199, dated 7 January 2009. 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. He enlisted in the Regular Army on 7 May 2002 and he held military occupational specialty 11B (Infantryman). 3. On 7 January 2009, an informal PEB convened in Washington DC, and found the applicant’s medical condition of spinal fusion diagnosed as low back pain with left leg (sensory) radiculopathy was unfitting. Item 8 (Disability Description) of his PEB states, "Soldier was injured by an instrumentality of war, a military parachute, following a hard landing March 2004 at Fort Bragg, NC, during a period of war." 4. The PEB rated him under the VA Schedule for Rating Disabilities (VASRD) code 5241 and he was granted a 20-percent disability rating. The Board recommended separation with severance pay. 5. Item 10 of his DA Form 199 contains the entry, "If retired because of disability, the board makes the recommended finding that:" a. "The Soldier’s retirement is 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 line of duty during a period of war as defined by law." b. "The evidence of record reflects the Soldier was not a member or obligated to become a member of an armed force or a Reserve thereof, or the NOAA [National Oceanic and Atmospheric Administration] or the USPHS [U.S. Public Health Service] on 24 September 1975." c. "The disability did result from a combat related injury as defined in 26 U.S.C. 104 [Title 26, U.S. Code (USC), section 104]." d. "Disability was not incurred in a combat zone or incurred during performance of duty in combat-related operations as designated by the Secretary of Defense [National Defense Authorization Act of 2008 (NDAA 2008), section 1646]." 6. On 23 February 2009, he concurred with the board’s findings and recommendation. Orders 183-0256, dated 2 July 2009, state, in part, under additional instructions: * Disability resulted from a combat related injury as defined in Title 26, U.S. Code, section 104: "YES" * 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, section 1646): "NO" 7. On 16 September 2009, the applicant was honorably discharged in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4 by reason of physical disability with entitlement to severance pay, non-combat related recorded in item 28 of his DD Form 214. He was awarded severance pay in the amount of $34,986.00. Additionally, item 26 (Separation Code) of this form shows the entry "JFO." 8. Army Regulation 635-40, 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. The voting members of the PEB make findings and recommendations in each case based on specified instructions that include whether the disability meets the criteria established by law for compensation. Appendix D (Instructions for DA Form 199) states for item 10c to make an entry for all cases even though item 10c addresses only Soldiers who will be retired. 9. Title 26 (Internal Revenue Code) U.S. Code, section 104 states, in part, that 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. 10. 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. Military Departments shall ensure the appropriate severance pay is calculated in accordance with Title 10, U.S. Code, section 1212. 11. 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 Disability Evaluation System (DES) Pilot "Enhanced" Program. 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. 12. 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. It directed that SPD codes JFI and JFO would replace SPD codes JFL and JEA. a. SPD code JFI for disability, severance pay, combat-related, is used for a discharge resulting from physical disability with combat-related severance pay and entitlement. b. SPD code JFO for disability, severance pay, noncombat-related, is used for a discharge resulting from physical disability with noncombat-related severance pay and entitlement. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that his narrative reason for separation should be corrected to show his disability was combat-related. 2. The applicant sustained a significant back injury as the result of a parachute hard landing at Fort Bragg, NC. The PEB determined he was physically unfit for further military service and recommended separation with entitlement to severance pay. 3. Based on Department of Defense guidance (for SPD purposes), in order for the applicant's injury to be categorized as "yes," the injury must have occurred or been sustained during combat-related operations, otherwise the injury is categorized as noncombat-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. The applicant's injury sustained during airborne operations is considered hazardous duty and/or simulation of war. 5. The entry in item 10c of the applicant's DA Form 199 which states his disability did result from a combat-related injury as defined in Title 26, U.S. Code, section 104 (for internal revenue code purposes), is correct and is also correctly shown on his discharge orders, dated 2 July 2009. 6. Under the FY 2008 NDAA, in order to differentiate injuries and establish specific entitlements to certain programs, the Department of Defense established specific SPD's for each type of injury. In the applicant's case, his injury was not incurred during the performance of duty in combat-related operations. He was discharged as a result of a disability that did not occur during combat-related operations which is correctly shown on his DD Form 214. 7. The applicant was appropriately assigned SPD code JFO which then automatically dictated his narrative reason for separation as "noncombat." Therefore, there is no basis for granting the applicant's request to amend item 28 of his DD Form 214. 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) AR20150004999 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004999 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1