IN THE CASE OF: BOARD DATE: 22 July 2022 DOCKET NUMBER: AR20210014703 APPLICANT REQUESTS: In effect, correction of the separation code and narrative reason for separation on his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his discharge for disability with severance pay was based on a combat related injury. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * discharge orders * DD Form 214 * Physical Disability Board of Review (PDBR) Record of Proceedings FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) 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, in effect, he was separated in 2005 for disability with severance pay based on injuries he received as a result of his military vehicle hitting an improvised explosive device in Iraq. In accordance with Title 38, Code of Federal Regulations, section 3.700(a)(3), severance pay should not be recouped by the Department of Veterans Affairs (VA) prior to the start of VA disability payments, however, his severance pay was recouped by the VA. Upon learning of the regulations, he requested an audit. He was told by the VA that he is due back pay, but without the correction to his DD Form 214, the VA cannot take action to direct the back pay. 3. The applicant enlisted in the Regular Army on 23 April 2000. 4. The applicant's DA Form 199 (Physical Evaluation Board Proceedings) is not available, however, orders issued on 6 December 2005 directed his separation effective 15 December 2005. The orders contain the following entries: * you are authorized disability severance pay * disability is based on injury or disease received in the line of duty (LOD) as a direct result of armed conflict or caused by an instrumentality of war and incurred in the LOD during a war period as defined by law: Yes * disability resulted from a combat related injury as defined in Title 26, U.S. Code, section 104: Yes 5. The applicant's DD Form 214 shows he was discharged on 15 December 2005. It further shows in: * Block 25 (Separation Authority), Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3) * block 26 (Separation Code), "JFL" * block 28 (Narrative Reason for Separation), "Disability Severance Pay" BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. Regulatory guidance during the period in which the applicant served did not provide for listing disability with severance pay as combat related. Therefore, the Board determined there was no error with his DD Form 214. 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. 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, 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 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. 2. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities and the reasons for the separation of members from active military service and the SPD codes to be used. The regulation in effect at the time of the applicant's separation, dated August 2005, provides that the SPD code of "JFL," as shown on the applicant's DD Form 214, is appropriate for involuntary discharge of enlisted personnel when the narrative reason for discharge is disability, severance pay and the authority for separation is Army Regulation 635-40, paragraph 4-24b(3). 3. All Army Activities Message 147/2008, dated 13 June 2008, subject: Implementation of New SPD Codes for the Disability-Related Provisions of National Defense Authorization Act (NDAA) 2008 and the Disability Evaluation System (DES) Pilot Program, implemented new SPD codes for the disability-related provisions of the fiscal year 2008 NDAA and the DES Pilot Program. It directed that SPD codes of "JFI" and "JFO" would replace SPD code "JFL," and the SPD codes of "JEA" and "JEB" would replace SPD code "JEL." a. SPD code "JFI" for disability, severance pay, combat-related, is used for a discharge a resulting from physical disability with combat-related severance pay and entitlement. b. SPD code "JFO" for disability, severance pay, non-combat related, is used for a discharge resulting from physical disability with non-combat related severance pay and entitlement. c. SPD code "JEA" for disability, severance pay, combat related (enhanced), is used for a discharge resulting from physical disability with combat-related severance pay and entitlement. d. SPD code "JEB" for disability, severance pay, non-combat related, is used for a discharge resulting from physical disability with non-combat related severance pay and entitlement. 14. Title 38, Code of Federal Regulations, section 3.700(a)(3) states, in part: a. Severance pay: Where the disability or disabilities found to be service- connected are the same as those upon which disability severance pay is granted, or where entitlement to disability compensation was established on or after 15 September 1981, an award of compensation will be made subject to recoupment of the disability severance pay. b. Where entitlement to disability compensation was established on or after 15 September 1981, a veteran may receive disability compensation for disability incurred or aggravated by service prior to the date of receipt of the severance pay, but VA must recoup from that disability compensation an amount equal to the severance pay. c. For members of the Armed Forces who separated under Title 10, U.S. Code, Chapter 61 (Retirement or Separation for Physical Disability), on or after 28 January 2008, no recoupment of severance pay will be made for disabilities incurred in line of duty in a combat zone or incurred during performance of duty in combat-related operations as designated by the Department of Defense. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210014703 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1