IN THE CASE OF: BOARD DATE: 15 November 2023 DOCKET NUMBER: AR20230003618 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 DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the 3-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: a. He is submitting this correction request for the combat code that is on his post- traumatic stress disorder (PTSD) to also be added to the disability on his DD Form 214, considering the injury was reaggravated in Afghanistan. This was discussed and approved before his separation from the Army. He only noticed two years ago when submitting for an increase for his PTSD with the Department of Veterans Affairs (VA) that it was not added, at which time, after it was approved, they started to deduct pay from his separation pay because the combat code is not his DD Form 214. b. This correction should be made because he was told the code was added and that he did not have to pay back the separation pay. He was given the option to not accept the separation pay and just receive VA disability compensation, which he was completely fine with, until he was told that he could receive both without paying anything back. He does not want to get over the system, but he does not want the system getting over on him. He should not have to pay for others mistakes and he would like to fix this issue. 3. The applicant enlisted in the Regular Army on 16 November 2011. He served in Afghanistan from 22 May to 18 November 2014. 4. On 9 November 2016, a Physical Evaluation Board (PEB) convened and found the applicant unfit for further military service due to right foot status post fracture traumatic arthropathy with status post tarsometatarsal fusion with metatarsalgia; PEB referred as: right foot: status post fracture traumatic arthropathy, and right foot: status post tarsometatarsal fusion with metatarsalgia. Onset occurred in 2013 while the applicant was stationed in Alaska. Method of injury is related to a motor vehicle accident. The PEB found the applicant fit for eight additional conditions, including PTSD. 5. The PEB recommended a 10% disability rating and the applicant's separation with entitlement to severance pay. The applicant's DA Form 199 (Informal PEB Proceedings) contains the following statements in section V (Administrative Determinations): a. The disability disposition is not based on disease or injury incurred in the line of duty in combat with an enemy of the United States and as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war. (This determination is made for all compensable cases but pertains to potential benefits for disability retirees employed under Federal Civil Service.) b. The disability did not result from a combat-related injury under the provisions of Title 26, U.S. Code, section 104 or Title 10, U.S. Code, section 10216. c. The disability severance pay was not awarded for disability incurred in a combat zone or incurred while performing combat-related operations as designated by the Secretary of Defense. 6. Orders issued on 23 January 2017 directed the applicant's separation with severance pay effective 19 March 2017. The orders contain the following entries: a. Disability is based on injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of as defined by law: No. b. Disability resulted from a combat related injury as defined in Title 26 U.S. Code, section 104: No. c. Disability was incurred in a combat zone or incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense (National Defense Authorization Act (NDAA) 2008 Section 1646): No. 7. The applicant's DD Form 214 shows he was discharged 19 March 2017 under the authority of Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation), chapter 4. It further shows in: * block 26 (Separation Code), "JEB" * block 27 (Reentry Code), “3” * block 28 (Narrative Reason for Separation), "Disability, Severance Pay, non- combat (enhanced)" 8. MEDICAL REVIEW: a. The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents, the Record of Proceedings (ROP), and the applicant's available records in the Interactive Personnel Electronic Records Management System (iPERMS), the Health Artifacts Image Management Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV). The applicant seeks for combat designation to be reflected on the DD Form 214. He contends that his disabling condition was aggravated in Afghanistan. b. The applicant’s record was summarized in the ABCMR ROP. Of note the applicant entered active service 16Nov2011. He served in Afghanistan 20140522 to 20141118. His MOS was 92Y Unit Supply Specialist. He underwent a PEB and was recommended disposition separation with severance pay at 10% and he was discharged 19Mar2017. c. PEB convened 09Nov2016 found the applicant’s Right Foot Status Post Fracture Traumatic Arthropathy with Status Post Tarsometatarsal Fusion with Metatarsalgia (referred to below as Right Foot condition) unfitting for continued service. PEB proceedings indicated onset in 2013 while stationed in Alaska the result of a motor vehicle accident. The PEB determined that the Right Foot condition was not a combat or combat related injury. The PEB did not indicate the condition was aggravated while in a combat zone. d. Medical records and related * 20Jun2013 right foot x-ray provided history that he sustained first and second metatarsal base fractures when a motorcycle fell on his right foot (19Jun2013). He underwent surgery 12Jul2013 at the Joint Base Elmendorf- Richardson-673d Medical Group by podiatry followed by recovery in a CAM boot. Subsequently he continued rehab undergoing physical therapy September through January 2014 while in Alaska. * 09Dec2013 Podiatry. He had no pain when walking or standing. He reported mild pain when running (mild 0-2/10); however, the exam showed clinical healing of the fracture and no palpable pain. He was discharged from the surgeon’s care and was referred to his primary care provider. The 09Dec2013 right foot film showed mild persistent soft tissue swelling. * 23Jan2014 Physical Therapy. He had significantly improved and was assessed to have no functional limitations. * 25Apr2014 SRP Clinic. Of pertinence, he had returned to airborne training the day prior. His profile was PULHES 111111. He was cleared to deploy. * While deployed in Afghanistan, he was seen on 28Aug2014 for an infected right big toe ingrown toenail. There was no report of right foot or toe injury. He had a history of prior ingrown toenail in the same digit which had also required excision. * In the 01Dec2014 PDHA (post deployment health assessment), the applicant reported his vehicle was involved in an explosion. The vehicle was drivable afterwards. He reported being evaluated afterwards and that he was uninjured. In question #21 he reported that he was still having pain and swelling from a prior right foot injury in a motorcycle crash 12July2013. There was no report of new injury. * Individual Jump Record showed he jumped on 08Jan2015 and 13Jan2015. * 02Mar2015 PDHRA (post deployment health reassessment). The applicant reported having had toenail surgery in theatre. Right foot pain/injury was not reported. * 05Mar2015, the applicant reported pain along the surgical site. He denied recent trauma. He stated that the pain started down range in May-November 2014. The right foot film showed stable post operative change. * 01Dec2015 the applicant was seen at Camp Mackall requesting new orthotics for chronic anterior right foot pain status post surgery. The 09Dec2015 physical examination did not reveal any abnormalities. A 17Dec2015 x-ray showed no bony abnormalities. The surgical hardware was intact with overlying soft tissue prominence. * 27Jan2016 the applicant returned for chronic right foot pain * 07Jul2016 MEB was initiated for Right Foot condition. * 04Aug2016 Foot Condition DBQ. The applicant reported the foot condition began after a motorcycle accident. He reported the condition was aggravated in Afghanistan from VBIED. * 29Aug2016 MEB Proceedings showed the Right Foot condition did not meet retention standards. e. Records showed that the right foot condition began due to a motorcycle accident in Alaska. While deployed, the vehicle in which he was riding, was impacted by an IED explosion (01Dec2014 PDHA). The vehicle remained drivable. He was evaluated at the time and no injury was found. He also reported during the post deployment assessment, that he still had right foot pain and swelling from the motorcycle crash in July 2013. It was noted that although he was seen for recurrent right big toe pain (due to ingrown toenail) while deployed in Afghanistan; he was not seen for right foot pain during deployment. Upon return from deployment, he resumed airborne operation training. No airborne injury was documented in the record. No right foot pain/swelling was reported in the 02Mar2015 PDHRA. However, 3 days later, the applicant reported pain along the surgical site of his right foot. Based on evidence available for review, an incident showing exacerbation of the Right Foot condition while deployed in Afghanistan or due to airborne operations, was not documented in the record. 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 Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition, available military records and medical review, the Board noted the advising official opine finding The PEB determined that the Right Foot condition was not a combat or combat related injury. The PEB did not indicate the condition was aggravated while in a combat zone. Evidence in the record show the applicant’s right foot condition began due to a motorcycle accident in Alaska. The Board found insufficient evidence to show the applicant’s discharge for disability with severance pay was based on a combat related injury. Based on the preponderance of evidence, the Board denied relief. 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 635-40 establishes the Army Disability Evaluation System (DES) 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. It states PEBs determine fitness for purposes of Soldiers retention, separation, or retirement for disability. The PEB also makes certain administrative determinations that may have benefit implications under other provisions of law. The regulation states in: a. Paragraph 5-24 (Determination for Purposes of Federal Civil Service Employment) the physical disability evaluation will include a decision and supporting documentation regarding whether the injury or disease that makes the Soldier unfit or that contributes to unfitness was incurred in combat with an enemy of the United States, was the result of armed conflict, or was caused by an instrumentality of war during a period of war. These determinations impact the eligibility of certain military retirees for certain benefits when employed under the Federal Civil Service System. (1) The determinations will be recorded on the record of proceedings of the Soldier’s adjudication. (2) Armed Conflict: The fact that a Soldier may have incurred a medical impairment during a period of war, in an area of armed conflict, or while participating in combat operations, is not sufficient to support a finding that the disability resulted from armed conflict. There must be a definite causal relationship between the armed conflict and the resulting unfitting disability. b. Paragraph 5-25 (Determination for Federal Tax Benefits) physical disability evaluation will include a determination and supporting documentation on whether the Soldiers disability compensation is excluded from Federal gross income under the provisions of Title 26, U.S. Code, section 104. The entitlement to this exclusion is based on the Soldier having a certain status on 24 September 1975 or being retired or separated for a disability determined to be combat related as set forth in this paragraph. The determination will be recorded on the record of proceedings of the Soldier’s adjudication. c. Combat related: This standard covers those injuries and diseases attributable to the special dangers associated with armed conflict or the preparation or training for armed conflict. A physical disability will be considered combat-related if it causes the Soldier to be unfit or contributes to unfitness and was incurred under any of the following circumstances: (1) As a direct result of armed conflict. (2) While engaged in hazardous service. Such service includes, but is not limited to, aerial flight duty, parachute duty, demolition duty, experimental stress duty, and diving duty. (3) Under conditions simulating war. In general, this covers disabilities resulting from military training, such as war games, practice alerts, tactical exercises, airborne operations, leadership reaction courses, grenade and live fire weapons practice, bayonet training, hand-to-hand combat training (combatives training), rappelling, and negotiation of combat confidence and obstacle courses. It does not include physical training activities, such as calisthenics and jogging or formation running and supervised sports. (4) Caused by an instrumentality of war. Occurrence during a period of war is not required. A favorable determination is made if the disability was incurred during any period of service as a result of such diverse causes as wounds caused by a military weapon, accidents involving a military combat vehicle, injury, or sickness caused by fumes, gases, or explosion of military ordnance, vehicles, or material. However, there must be a direct causal relationship between the instrumentality of war and the disability. For example, if a Soldier is on a field exercise and is engaged in a sporting activity and falls and strikes an armored vehicle, the injury will not be considered to result from the instrumentality of war (the armored vehicle), because it was the sporting activity that was the cause of the injury, not the vehicle. On the other hand, if the individual was engaged in the same sporting activity and the armored vehicle struck the Soldier, the injury would be considered the result of an instrumentality of war (the armored vehicle). 3. Title 26, U.S. Code, section 104, states that for the purpose of this subsection, the term "combat-related injury" means personal injury or sickness which is incurred as a direct result of armed conflict, while engaged in extra hazardous service, or under conditions simulating war; or which is caused by an instrumentality of war. 4. 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 assigned. The regulation provides that the SPD code of "JEB," 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, non-combat related and the authority for separation is Army Regulation 635-40. 5. All Army Activities Message 147/2008, dated 13 June 2008, subject: Implementation of New SPD Codes for the Disability-Related Provisions of 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. 6. 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. 7. Section 1556 of Title 10, U.S. Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by ARBA be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to ABCMR applicants (and/or their counsel) prior to adjudication. 8. Title 10, USC, Section 1201 provides for the physical disability retirement of a member who has either 20 years of service or a disability rating of 30% or greater. 9. Title 10, USC, Section 1203 provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30%. 10. Title 38, USC, Sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice on the part of the Army. a. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. b. The VA does not have authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform her duties. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 11. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors, when taking action on applications from former service members administratively discharged under other than honorable conditions, and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 12. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole, or in part, to: mental health conditions, including PTSD; traumatic brain injury; sexual assault; sexual harassment. Boards were directed to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on those conditions or experiences. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for that misconduct which led to the discharge. 13. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230003618 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1