ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  2 August 2019

	DOCKET NUMBER:  AR20170012769


APPLICANT REQUESTS:  an upgrade to his uncharacterized discharge

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 214 (Certificate of Release or Discharge from Active Duty
* Medical Evaluation Board (MEB) file
* Physical Evaluation Board (PEB) file
* Three College Graduate Certificates

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant states he joined the Army after 9/11 to defend his country from terrorism.  He gave up his civilian life to be trained as a Soldier.  After several months of training, he suffered different stress fractures on both legs.  He was then discharged from the Army with a disability discharged.  He believes he gave all to his country to become a Soldier and he deserves to receive an honorable discharge, instead of an uncharacterized character of service.  While enlisted he was of good conduct and moral. 

3.  The applicant provides:

	a.  His MEB file, which shows the board’s findings, recommendations, diagnosis and referral to the PEB.

	b.  His PEB file, which shows the board’s findings, and recommendations. 

	c.  Three certificates (Bachelor of Arts, Associates in Arts and an Associate in Science) from higher learning educational institutions.  

	d.  The DD Form 149 states, “see attached self-authored statement”; however, his file does not contain a statement. 

4.  A review of the applicant’s service record shows: 

	a.  He enlisted in the Regular Army on 31 October 2001.

	b.   On 4 February 2002, a Medical Evaluation Board (MEB) convened and after consideration of clinical records, laboratory findings, and physical examinations, found he was diagnosed with multiple bilateral lower extremity stress fractures and recommended for a referral to a Physical Evaluation Board (PEB).

	c.  On 8 April 2002, after having been counseled, the applicant indicated he reviewed the contents of the MEB, agreed with the findings and recommendations, and authenticated the DA Form 3947 (MEB Proceedings) with his signature.

	d.  On 10 April 2002, an informal PEB convened to determine the applicant’s fitness for retention in the Army.

		(1)  The PEB found him physically unfit for multiple bilateral lower extremity stress fractures, recommended a rating of 0%, and that his disposition be separation with severance pay.

		(2)  He concurred with the PEB findings and recommendations on 12 April 2002, and waived her right to a formal hearing. 

	e.  On 2 May 2002, he was discharged from active duty in accordance with Army Regulation (AR) 635-40 (Disability Evaluation for Retention, Retirement, or Separation), Chapter 4-24B (3), by reason of disability, severance pay.  His DD Form 214 shows he completed 5 months and 22 days of net active service.  It also shows in:

* item 26 (Separation Code), JFL
* item 27 (Reentry Code), 3
* item 28 (Narrative Reason for Separation), Disability, Severance Pay

5.  The applicant's record is void of evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15 year statute of limitations.

6.  By regulation:

	a. Soldiers separated under the provisions of Army Regulation 635-40, paragraph 4-24B (3) with entitlement to severance pay are assigned the narrative reason for separation “Disability, Severance Pay” and the Separation Code “JFL.”
	b.  A combat-related injury is defined as a personal injury or sickness that a Soldier incurs under one of the following conditions:

* as a direct result of armed conflict
* while engaged in extra hazardous service
* under conditions simulating war
* or which is caused by an instrumentality of war

7.  The SPD/RE Code Cross Reference Table, in effect at the time of his discharge shows the Separation Code and a corresponding RE code.  The SPD code of "JFL" has a corresponding RE code of "3."

7.  The Board can consider the applicant's petition and his service record in accordance with the published equity, injustice, or clemency determination guidance.  

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found the relief was warranted.  The applicant’s contentions were carefully considered.  He was separated for disability and received severance pay.  The Board agreed although he served for less than 6 months, the character of service should reflect honorable as he had service-connected reasons for the medical discharge.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

X	X	X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing him a DD Form 214 for the period ending 2 may 2002 showing his character of service as Honorable.
	 	 

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.


REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.

2.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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 office, grade, rank, or rating.  Paragraph 4-24B (3) applies to Soldiers separated for disability with entitlement to severance pay.  The narrative reason for separation “Disability, Severance Pay”

3.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the Reserve.  The regulation provides that prior to discharge or release from active duty individuals will be assigned RE codes based on their service records or the reason for discharge.  Chapter 3 of this regulation prescribes basic eligibility for prior service applicants for enlistment.  Table 3-1 includes a list of the RA RE codes, and states:

* RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army; they are qualified for enlistment if all other criteria are met
* RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable; they are ineligible unless a waiver is granted
* RE-4 applies to Soldiers separated from last period of service with a nonwaivable disqualification

4.  Army Regulation 635-5-1 (Separation Program Designator Codes(SPD)) states that SPD codes are three-character alphabetic combinations which identify reasons for, and types of separation from active duty.  The "JFL" SPD code is used for involuntary separation and is the correct code for Soldiers separated under paragraph 4-24b (3) of Army Regulation 635-40 by reason of disability with entitlement to severance pay.

5.  Title 26, USC, section 104, authorizes special rules for combat-related injuries for compensation for injuries or sickness.  For purposes of this subsection, the term “combat-related injury” means personal injury or sickness (A) which is incurred (i) as a direct result of armed conflict, (ii) while engaged in extra-hazardous service, or (iii) under conditions simulating war; or (B) which is caused by an instrumentality of war.

6.  Title 10, USC, section 1413a, states the Secretary concerned shall pay to each eligible combat-related disabled uniformed services retiree who elects benefits under this section a monthly amount for the combat-related disability of the retiree determined under subsection (b).  In this section, the term “combat-related disability” means a disability that is compensable under the laws administered by the Secretary of Veterans Affairs and that (1) is attributable to an injury for which the member was awarded the Purple Heart; or (2) was incurred (as determined under criteria prescribed by the Secretary of Defense) (A)  as a direct result of armed conflict; (B) while engaged in hazardous service; (C) in the performance of duty under conditions simulating war; or (D)  through an instrumentality of war.

7.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table shows the SPD code and a corresponding RE code.  The SPD code of "JFL" has a corresponding RE code of "3."

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170012769


4


1