IN THE CASE OF: BOARD DATE: 2 September 2014 DOCKET NUMBER: AR20140000157 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 he was discharged because of a combat-related event vice a non-combat related event. 2. The applicant states: a. When he was processing his claim for disability compensation with the Department of Veterans Affairs (VA) it was brought to his attention that his discharge orders and DD Form 214 contain conflicting information. Item 28 (Narrative Reason for Separation) of his DD Form 214 shows "disability severance pay, non-combat related" and his discharge orders show "disability resulted from a combat related wound as defined in [Title] 26 U.S. Code (USC) 104." b. The VA Regional Office requested he provide them a DD Form 215 (Correction to DD Form 214) before they will proceed with any action on his claim. c. He truly has no idea what his DD Form 214 should state or what regulations are used. He was never deployed to a combat zone. He was in basic combat training (BCT) when the injury occurred and then in advanced individual training (AIT) at Fort Sam Houston, TX, when the injury was aggravated. In 2012, he was discharged because of his injury. 3. The applicant provides his DD Form 214 and orders. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 6 June 2011. He completed BCT and on 20 August 2011 he was assigned to Fort Sam Houston, TX, for AIT. 2. On 9 April 2012, a medical evaluation board (MEB) convened at Fort Sam Houston and diagnosed him with the condition of low back strain that failed retention standards. The MEB also found the conditions of left knee pain and insomnia did meet retention standards and the conditions of attention deficit hyperactivity disorder and adjustment disorder did not constitute a physical disability. The MEB recommended his referral to a physical evaluation board (PEB). 3. The MEB Medical Record Report, dated 6 March 2012, stated, in part, the applicant sustained an injury to his low back during BCT in a combative training session. It failed to improve despite physical therapy, rest, cane use, medication, and single pain management intervention. The applicant had a profile against running, weight bearing, push-ups, sit-ups, jumping, prolonged walking, prolonged standing, prolonged sitting, and individual body armor wear. He cannot bear a combat load or successfully pass the Army Physical Fitness Test even with an alternate event. 4. On 15 May 2012, an informal PEB convened at Fort Sam Houston and confirmed his unfitting disability. The PEB found the applicant's condition prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit due to lumbar strain. He was rated under the VA Schedule for Rating Disabilities code 5237 and assigned a 20 percent disability rating. The PEB recommended his separation with severance pay. 5. The DA Form 199, dated 15 May 2012, shows the PEB found: a. His disability was not based on a 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. b. The disability did result from a combat-related injury under the provisions of 26 USC 104 or 10 USC 10216. c. The disability severance pay was not awarded for a disability incurred in a combat zone or incurred while performing combat-related operations as designated by the Secretary of Defense (10 USC 1212). 6. Orders 321-0104, dated 16 November 2012, issued by Headquarters, Joint Base San Antonio, assigned him to the U.S. Army Transition Point, Fort Sam Houston effective 16 November 2012 for processing and discharge from active duty after processing. The Additional Instructions section of these orders show, in part: * disability is based on injury or disease received in the line of duty 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 - NO * disability resulted from combat related injury as defined in 26 USC 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 National Defense Authorization Act (NDAA) 2008 Section 1646 - NO 7. He was honorably discharged on 16 November 2012. 8. His DD Form 214 shows in: * item 25 (Separation Authority) – Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4 * item 26 (Separation Code) the entry "JPO" * item 28 the entry "DISABILITY, SEVERANCE PAY, NON-COMBAT RELATED" 9. Army Regulation (AR) 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 Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations. 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. 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 (emphasis added). 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. The statute provides that there will be no deduction from compensation of severance pay for disabilities incurred in combat zones or incurred during performance of duty in combat-related operations as designated by the Secretary of Defense. 11. Department of Defense Instruction 1332.38, subject: Physical Disability Evaluation, states a physical disability evaluation shall include a determination and supporting documentation on whether the member's physical disability compensation is excluded from Federal gross income under Title 26 USC 104. A physical disability shall be considered combat-related if it makes the member unfit or contributes to unfitness and was incurred under any of the following circumstances: * as a direct result of armed conflict * while engaged in hazardous service * under conditions simulating war * caused by an instrumentality of war 12. Army Regulation 635-5-1 (Separation Program Designator (SPD 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. They are intended exclusively for the internal use of the Department of Defense and the Military Services to assist in the collection and analysis of separation data. 13. ALARACT (All Army Activities) Message 147/2008, dated 13 June 2008, Subject: Implementation of new separation 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 evidence of record confirms the applicant was discharged on 16 November 2012 by reason of disability with severance pay due to an injury that occurred during BCT in a combative training session under conditions simulating war. 2. Orders 321-0104 discharging him from active duty correctly show his disability resulted from a combat-related injury as defined in 26 USC 104. These orders also correctly show "No" to indicate his disability was not incurred in a combat zone or incurred during the performance of duty in combat-related operations as designated by NDAA 2008 Section 1646. In order for this to be "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. 3. 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 BCT, is considered hazardous duty and/or simulation of war. However, 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 injury occurred in line of duty and it was caused by an instrumentality of war. 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. 4. The applicant's DD Form 214 shows he was appropriately assigned SPD "JFO" which then automatically dictated his narrative reason for separation as "non-combat related." 5. In view of the foregoing, he is not entitled to 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) AR20140000157 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140000157 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1