ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 June 2019 DOCKET NUMBER: AR20180002513 APPLICANT REQUESTS: in effect, correction of her records to show her non-combat injury was combat-related. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 2173 (Statement of Medical Examination and Duty Status) * Excerpt of Medical Evaluation Board (MEB) * Medical Record 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 provides: a. A Statement of Medical Examination and Duty Status, dated 21 November 2000, which shows on 28 June 1995, she presented with a one month history of back pain after falling on a steep hill trying to retrieve her ruck sack during training while stationed in Hawaii. b. An excerpt from her MEB, which shows the reason as chronic low back pain from problems initially presented in 1995 after sustaining a fall where she landed on her back and ruck-sack. c. A medical record document which shows she has had lower back pain since June 1995 from falling downhill during training. 3. A review of the applicant’s service records shows: a. She enlisted in the Regular Army on 3 October 1991. b. She served in Hawaii from 18 March 1994 to 17 March 1997 and in Kuwait from 22 August 1999 to 16 February 2000. c. On 27 December 2000, a MEB convened and after consideration of clinical records, laboratory findings, and physical examinations, found she was diagnosed with chronic low back pain secondary to degenerative joint changes in her low back and recommended for a referral to a Physical Evaluation Board (PEB). d. On 6 January 2001, after having been counseled, the applicant indicated she reviewed the contents of the MEB, agreed with the findings and recommendations, and authenticated the DA Form 3947 (MEB Proceedings) with her signature. e. On 10 January 2001, an informal PEB convened to determine the applicant’s fitness for retention in the Army. (1) The PEB found her physically unfit for chronic low back pain, recommended a rating of 10%, and that her disposition be separation with severance pay. (2) She concurred with the PEB findings and recommendations on 12 January 2001, and waived her right to a formal hearing. f. On 7 March 2001, she was honorably discharged from active duty in accordance with chapter 4, Army Regulation (AR) 635-40 (Disability Evaluation for Retention, Retirement, or Separation), by reason of disability, severance pay. Her DD Form 214 shows she completed 9 years, 5 months, and 5 days of 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 4. 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 5. 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." BOARD DISCUSSION: After reviewing the application and all supporitng documents, the Board determined that relief was not warranted. Based upon the medical advisory's findings, the Board concluded there was insufficient evidence to show that he applicant's injury was combat related. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 6/24/2019 X CHAIRPERSON Signed by: 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."