IN THE CASE OF: BOARD DATE: 5 October 2021 DOCKET NUMBER: AR20210005026 APPLICANT REQUESTS: reconsideration of her previous request for correction of her Separation Code and to show her disability was combat-related. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Separation orders, dated 25 January 2001 * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20180002513, on 13 June 2019. 2. The applicant previously stated she wanted a correction of her Separation Code and the recoupment of separation pay to be reimbursed. According to [Title 10] U.S. Code, section 1212, effective 28 January 2018, payment will not be recouped for disabilities incurred in a combat zone or during performance of duty in combat-related operations as designated by Department of Defense. Her military records show that the disability for which she was discharged for incurred during performance of duty in combat-related operation. Her disability was incurred in the line of duty under conditions simulating war during a training exercise during Sergeants Time Training. The Board denied her request. She is requesting a reconsideration of the Board's decision based on the submission of new and relevant evidence that was not considered by the Board when it denied her original application. The new evidence is her discharge orders, 025-0003. 3. Review of the applicant's service records shows: a. She enlisted in the Regular Army on 3 October 1991 and held military occupational specialty 92Y (Unit Supply Specialist). b. She served through multiple reenlistments, in a variety of stateside or overseas assignments, including Hawaii from 18 March 1994 to 17 March 1997 and in Kuwait from 22 August 1999 to 16 February 2000. She was advanced to staff sergeant (SSG)/E-6 in February 1998. c. Her record contains a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 21 November 2000, that shows she suffered a back injury. (1) She presented on 28 June 1995 with a one-month history of back pain after falling on a steep hill trying to retrieve her ruck sack during sergeants time training while stationed at Schofield Barracks, Hawaii. She was treated with anti-inflammatory medications and recurrent treatments in physical therapy with some improvement initially in her back pain symptoms. (2) Over the last year, her pain is significantly worsened to the point that she can hardly run at all, she has difficulty in bending and lifting things and has almost constant pain in her low back with no extension or radiation into her lower extremities. d. Her Narrative Summary, dated 12 December 2000, shows she complained of chronic low back pain. Her chief complaint was that she has had 5 years of worsening low back pain making it difficult for her to perform her duties at work and physical training. She entered the disability evaluation system. e. On 27 December 2000, a medical evaluation board (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. She no longer meets the standards of retention in accordance with paragraph 3-14c of Army Regulation (AR) 40-501 (Standards of Medical Fitness). The MEB recommended her referral to a Physical Evaluation Board (PEB). f. The applicant was counseled on 6 January 2001, and after having been counseled, she indicated she reviewed the contents of the MEB and agreed with the findings and recommendations. g. On 10 January 2001, an informal PEB convened to determine the applicant’s fitness for retention in the Army. 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, if otherwise qualified. The PEB noted that * The Soldier's retirement (separation in this case) is not based on disability from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurring in line of duty during a period of war as defined by law. * The disability did not result from a combat related injury as defined in Title 26, U.S. Code, section 104 h. On 12 January 2001, following her counseling, the applicant concurred with the PEB findings and recommendations and waived her right to a formal hearing. i. On 3 January 2001, Headquarters, 24th Infantry Division, Fort Riley, published Orders 025-003 reassigning her to the Transition Center for separation processing on 7 March 2001. The orders indicated: (1) She was authorized disability severance pay in pay grade SSG based on 9 years, 5 months, 5 days of service as computed under section 1208, section 10, United States Code; Percentage of disability 10% (2) Disability is based on injury or caused by period as injury as disease received in the line of duty (LOD) as a direct Result of Armed Conflict or an instrumentality of war and incurred in the LOD during a war defined by law: No (3) Disability resulted from a combat related defined in 26 USC 104: No. j. She was honorably discharged from active duty on 7 March 2001. Her DD Form 214 shows she was discharged 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: * Block 26 (Separation Code), JFL * Block 28 (Narrative Reason for Separation), Disability, Severance Pay k. On 13 June 2019, after reviewing the application and all supporting documents, the Board determined that relief was not warranted. The Board concluded there was insufficient evidence to show that he applicant's injury was combat related. 4. By regulation (AR 635-5-1), Separation Code JFL applies to enlisted Soldiers who were separated under the provisions of AR 635-40, paragraph 4-24B(3) with entitlement to severance pay, Not combat-related. 5. By regulation (AR 635-40), 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. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. Board members noted that the applicant's 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. The MEB did not indicate this condition was caused by a combat event. Likewise, the informal PEB that found her unfit for chronic low back pain, found her separation is not based on disability from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurring in line of duty during a period of war as defined by law. Her disability did not result from a combat related injury as defined in Title 26, U.S. Code, section 104. Board members found insufficient evidence to support her request. 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 to amend the decision of the ABCMR set forth in Docket Number AR20180002513, on 13 June 2019. 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. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, established 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) applied to Soldiers separated for disability with entitlement to severance pay. The narrative reason for separation “Disability, Severance Pay.” 2. 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 under paragraph 4-24b(3) of Army Regulation 635-40 by reason of disability with entitlement to severance pay, non-combat related. 3. Title 26, U.S. Code, 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. (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. (B) which is caused by an instrumentality of war. 4. Title 10, U.S. Code, 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210005026 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1