BOARD DATE: 28 September 2017 DOCKET NUMBER: AR20160004349 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ___x_____ ___x_____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 28 September 2017 DOCKET NUMBER: AR20160004349 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. BOARD DATE: 28 September 2017 DOCKET NUMBER: AR20160004349 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) for the period ending 28 June 2000 to show the separation code identified with a permanent disability retirement. 2. The applicant states, in effect: a. His DD Form 214 shows his separation code as "JFL." While still on active duty, he was told he was being medically retired. He believes his separation code should be shown as "SFJ." b. Having been injured while serving in the military, he was diagnosed with degenerative joint disease (DJD) and lower back scoliosis. He was unable to continue serving and was medically separated. The injuries that have been ever present in his daily life cause pain and limit his mobility and desired activity levels. For those reasons, the permanence of the injuries would support a retirement code. 3. The applicant provides copies of his DD Form 214, DD Form 2648 (Pre-Separation Counseling Checklist), and separation orders. 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 enlisted in the Regular Army on 9 November 1994. He entered active duty, completed his initial entry training, and was awarded military occupational specialty (MOS) 14J (Early Warning System Operator). 3. A DA Form 3343 (Physical Profile), dated 6 October 1999, shows the applicant received a permanent profile for bilateral anterior knee pain. The profile approving authority determined the profile required a change in his MOS and duty assignment. 4. An MOS/Medical Retention Board (MMRB) evaluated the applicant's ability to perform the physical requirements of his MOS. The MMRB determined the limitations of his profile were so prohibitive that they precluded retaining; it was recommended that he be reclassified into another MOS based on Army requirements. 5. A DA Form 3947 (Medical Evaluation Board (MEB) Proceedings), dated 28 April 2000, shows the applicant was evaluated by an MEB for chronic bilateral anterior knee pain, and mechanical low back pain with radiographic evidence of levoscoliosis. The MEB referred him to the Physical Evaluation Board (PEB). He acknowledged he had no desire to continue active duty service and concurred with the MEB findings on 8 May 2000. 6. A DA Form 199 (PEB Proceedings), dated 18 May 2000, shows the applicant was found physically unfit and did not meet medical retention standards for chronic pain in both knees and lower back. The PEB recommended his discharge with entitlement to severance pay with a 10 percent (%) disability rating. He concurred with the PEB's decision and waive a formal hearing on 23 May 2000. 7. The applicant was honorably discharged from the Army on 28 June 2000. The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3), by reason of disability, with severance pay. Item 26 (Separation Code) of his DD 214 shows the separation code "JFL.". He authenticated the DD Form 214 with his signature. 8. The applicant provides Orders 178-0234, issued by Headquarters, III Corps and Fort Hood, on 26 June 2000, which shows he was being separated on 28 June 2000 with 10% disability severance pay. REFERENCES: 1. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment, retention, and separation, including retirement. Chapter 3 provides the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individual in paragraph 3-2, below. These medical conditions and physical defects, individually or in combination: * significantly limit or interfere with the Soldier's performance of duties * may compromise or aggravate the Soldier's health or well-being if the Soldier remains in the military – this may involve dependence on certain medications, appliances, severe dietary restrictions, frequent special treatments, or a requirement for frequent clinical monitoring * may compromise the health or well-being of other Soldiers * may prejudice the best interests of the government if the individuals were to remain in the military service 2. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation codes to be used for these stated reasons. The regulation shows the separation code "JFL," as shown on the applicant's DD Form 214, was the correct code for Soldiers separating under the provisions of Army Regulation 635-40, paragraph 4-24b(3), in instances where the discharge was determined to be for disability with severance pay. 3. Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (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 version in effect at the time, provided for medical review board's which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501. Disability compensation is not an entitlement acquired by reason of a service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. a. Paragraph 3-1 provides that the mere presence of impairment does not of itself justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. b. Paragraph 3-5 states the percentage assigned to a medical defect or condition is the disability rating. A rating is not assigned until the PEB determines the Soldier is physically unfit for duty. Ratings are assigned from the VA Schedule for Rating Disabilities (VASRD). The fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness. An unfitting or ratable condition is one which renders the Soldier unable to perform the duties of his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of his or her employment on active duty. There is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. 4. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10 U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. DISCUSSION: 1. The applicant's request for correction of his DD Form 214 to show a separation code that represents a disability retirement was carefully considered. He contends the severity of his injuries support a retirement separation code. 2. During his period of active service, the applicant suffered from a physical condition that failed retention standards. His PEB Proceedings show his chronic knee pain and lower back pain was fully considered and failed retention standards. There were no other conditions identified in his military records that failed retention standards or were found unfitting. 3. The conditions considered by the PEB and determined to be unfitting were rated at 10%. The PEB recommended him for separation with an entitlement to severance pay. He did not appeal the PEB recommendation or request a hearing. 4. Title 10, U.S. Code, section 1201, provides that physical disability retirement for service members requires a disability rating of at least 30%. 5. The applicant's DD Form 214 shows he was assigned the separation code "JFL" for disability with severance pay, which is the appropriate separation code for Soldiers separated under the provisions of Army Regulation 635-40, paragraph 4-24b(3). //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016310 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004349 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2