ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 29 July 2019 DOCKET NUMBER: AR20180016349 APPLICANT REQUESTS: his separation code be changed to reflect “JFI” Disability Severance Pay, Combat Related, which did not exist at the time of his separation. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Personal Statement * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Excerpt of Article on Employment of QUICKFIX in Division IEW Operations * Copies of Army Commendation Medal Certificates * Copy of Air Medal Certificate * Orders * Certificate of Achievement in Safety * Medical documents * Reference documents on Compensation for injuries or sickness (26 USC Code 104) * Department of Veterans Affairs (VA) Decision Documents * VA Recoupment Letter * Copy of Army Regulation 635-5-1 (15 May 2006) * Definition of Terms * Article on Implementing the Wounded Warrior Provisions of the National Defense Authorization Act * DA Form 2A * 2 pages of DA Form 2-1 * Article pertaining to the Gulf War, Gulf War Veterans, and Historical Perspective on Related Intelligence 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: a. He was medically discharged in August of 1998 and awarded severance pay. He was also granted service-connected disabilities as of August 1998. Thirteen years later he was notified that because his discharge code did not reflect combat related operations, VA was going to recoup all of his severance pay. He contends his medical discharge was combat related and the separation code “JFI” did not exist. He has attached numerous supporting documents pertaining to his separation in relation to the exception clause mentioned in VA letter dated 12 April 2018. He has suffered a number of hardships in the past few years and as a result the recoupment of his severance pay from his disability compensation he has been placed in a very difficult situation. 3. On 14 April 1998, a Medical Evaluation Board (MEB) referred the applicant to a Physical Evaluation Board (PEB) due to mechanical low back pain. The applicant desired to continue on active duty; however, the MEB determined continuance on active duty was contraindicated. The findings of the board were approved on 16 April 1998, and the applicant agreed with the board’s findings on 17 April 1998. 4. On 18 May 1998, a PEB convened and found the applicant physically unfit due to mechanical low back pain due to degenerative disc disease and recommended the applicant be separated with severance pay and combined disability rating of 10 percent. The board indicated the disability did not result from a combat related injury. The applicant did not concur; however, he waived a formal hearing and indicated he did not attach a written appeal. 5. On 9 August 1998, the applicant was discharged due to disability with severance pay. 6. The applicant provides a letter from VA indicating the applicant’s compensation is being recouped due to receiving severance pay. For VA not to recoup the severance pay, the pay code on his discharge would have to stand for “combat related operations” requirement, the disability must be the result of armed conflict. 7. On 6 May 2019, the Army Physical Disability Agency (PDA), legal advisor provided an advisory opinion. The PDA legal advisor states, in part: a. At the time the applicant processed through the Disability Evaluation System, the separation designator code of “JFL” was the only code authorized for disability separation discharges. Additionally, the applicant’s ABCMR appeal materials do not contain any medical or supplemental evidence contending an improper adjudication or combat code supporting evidence to warrant a present day change. To reinforce that point, the PEB’s comment in paragraph 6 strongly suggested (but not definitively) then-the applicant’s contention was focused on finding his condition unfitting as the preeminent purpose for his appeal; then-the applicant was previously found fit for duty for the same condition. We find this evidence as being probative of the claimant’s mindset at the time and the PEB’s directed response to his singular focused contention. b. PDA acknowledges the ABCMR’s request for a narrowly focused advisory opinion. PDA also acknowledges the claimant’s casefile lacks the typical breadth and width of relevant documentation to make a decisive determination one way or the other due to the extensive lapse in time. We are therefore unable to assess if the combat related determination was improperly applied. It is our opinion, since the combat related determinations made by the PEB displayed on the Department of Army DA Form 199 (PEB Proceedings), in block 10, affirmed the PEB’s determination to not grant combat related benefits (and so designated on the subsequent separation order) that the burden of proof must rest entirely on the time and the PEB’s directed response to his singular focused contention. A copy of the complete medical advisory was provided to the Board for their review and consideration. 7. In response to the advisory opinion, the applicant submits additional evidence to include a three page rebuttal which states, in part: a. After several years of increasing back pain without explanation he was sent to see a neurosurgeon. On 12 ember 1997, he documented from MRI evidence a severe degeneration of his LS-Sl disc. This degeneration had developed over the previous 5 years since his return from combat service in the Persian Gulf. Dr. C stated he had the back of an 80 year old man. He also stated that due to the multi-level degeneration there was nothing surgically he could do to help improve his disease or reduce the symptoms associated with the disease. b. He is not the only person from his platoon to develop illnesses from service in Iraq. It wasn't until 1996, 5 years after my return from combat service, that the Army and Department of Defense formally announced that service members were exposed to chemical weapons. He has in his possession a picture from his aircraft of the detonation of chemical munitions as well as other munitions at the Khamisiyah ammunition depot. On this day the litmus paper on the exterior of the aircraft as well as on their two-month-old chemical suits changed color indicating the presence of a chemical agent in the air. He has no idea how many other people in his unit were affected as he is no longer in contact with them. c. On 14 April 1998, MEB acknowledged the degenerative disease in his spine and made the determination it was incurred while entitled to base pay, and permanently aggravated by service. On 18 May 1998, PEB determined his injuries occurred while entitled to base pay, in line of duty, and proximate result of performing duty; however, he contend PEB made a mistake indicating his primary military occupational specialty and in determining his disability did not result from a combat related injury as defined by 26 U.S.C 104. This error was also placed in to his permanent record. d. 26 U.S.C 104 "Special Rules for Combat related injuries" defines combat related injury as personal injury or sickness which incurred as a direct result of armed conflict while engaged in extra-hazardous service, under conditions simulating war or caused by an instrumentality of war. In his case, all 4 elements apply to define his injury/illness as combat related. There is no evidence in the PEB proceedings that suggests that the PEB applied the special rules in making their combat related assessment. The applicant goes on to define Instrumentality of War as defined by the Physical Evaluation for Retention and cite portions of Army Regulation 600-106 (Flying Status for Nonrated Army Aviation Personnel). e. The applicant concludes, with all the evidence and information that he has been able to provide to, he respectfully ask the board to find in favor of changing his separation code in block 26 on my DD Form 214 to the new code "JFI" and the narrative in block 28 to "DISABILITY, SEVERANCE PAY, COMBAT RELATED" that were not available at the time of his discharge 7. Army Regulation 635-5-1 (SPD Codes), in effect at the time, provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. The SPD code of "JFL" is the appropriate code to assign Soldiers separated under the provisions of Army Regulation 635-40, paragraph 4-24 b(3) by reason of "Disability, Severance Pay." BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence on the records and an advisory opinion. The Board considered the applicant’s statement, his record of service, his medical board proceedings and the reason for his separation. The Board considered the applicant’s condition and the review and conclusions by the physical disability agency advising official and the applicant’s rebuttal to the advisory opinion. The Board did not find sufficient evidence to show that the applicant’s condition was combat related. Based on a preponderance of evidence, the Board determined that the separation code reflected on the applicant’s DD Form 214 was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted.? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XXX 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. 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. ADMINISTRATIVE NOTE(S): Not Applicable ? 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 635-5-1 (SPD Codes), in effect at the time, provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. The SPD code of "JFL" is the appropriate code to assign Soldiers separated under the provisions of Army Regulation 635-40, paragraph 4-24 b(3) by reason of "Disability, Severance Pay." ABCMR Record of Proceedings (cont) AR20180016349 6 1