MEMORANDUM OF CONSIDERATION


	IN THE CASE OF:       
	    


	BOARD DATE:            18 February 1999
	DOCKET NUMBER:    AC97-06022
                                               AR1998002506

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.



	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That he be granted a medical retirement.

APPLICANT STATES:  That the Army should have rated him with at least a 40 percent disability at the time of his separation from the service.  He states that he was discharged for failing to meet Army weight standards by being five pounds overweight.  He contends that his medical problems impaired his ability to lose weight and that he was never referred to a physical therapist or orthopedic doctor to outline a program that would have allowed him to lose weight without further damaging himself and causing him to hurt all the time.

In support of his application, he has provided a four-page statement, along with assorted medical records, notes, and a Department of Veterans Affairs (VA) rating decision.

COUNSEL STATES:  On 30 December 1998 counsel was afforded the opportunity to review the applicant’s records and application and respond on his behalf.  However, as of 10 February 1999, no response had been received.

EVIDENCE OF RECORD:  The applicant's military records show:

He enlisted in the Army on 24 January 1978 for 3 years.  He successfully completed his initial training as an infantryman (11B) and performed duties in a series of assignments both in the United States and overseas.  In 1980 the applicant was retrained as an explosive ordinance disposal (EOD) specialist (55D).  He performed EOD duties and attained the rank of sergeant first class on 1 July 1990.

On 13 April 1988 a military occupational specialty/medical retention board (MOS/MRB) convened to determine whether or not the applicant should be retained in his primary MOS (PMOS).  It considered the evidence available and found that the applicant had been performing the duties in PMOS 55D since June 980 and that his medical condition did not prevent him from performing the full range of physical tasks required of his PMOS in a worldwide field environment.  Therefore, it recommended that he be retained in his PMOS of 55D.  The appropriate authority approved this recommendation on 29 April 1988.

On 21 April 1992 the applicant underwent a routine unit weigh-in and was found to exceed the standard for his height and age.  The subsequent evaluation by tape showed him to have a body fat percentage of 24.65.  The standard for percent of body fat was no more than 24 percent.  The applicant was entered into the weight control program and given a medical evaluation.  His overweight condition was determined not to be due to a medical condition.

On 29 May 1992 the applicant was again weighed and taped.  He was within Army standards with a 23.19 percent of body fat.  On 10 June 1992 he was removed from the overweight program.

On 30 November 1992, during a routine weigh-in, the applicant was again found to exceed the body fat standards.  His percent of body fat was 25.70.

On 21 December 1992 the applicant’s commander initiated a recommendation to separate him from the service under the provisions of Army Regulation 635-200, paragraph 5-15, for failure to meet Army body composition/weight control standards.  The commander based his decision on the fact that the applicant had exceeded the body fat standard within 12 months following removal from the weight control program.

On 7 January 1993 the appropriate authority appointed an elimination board to determine whether or not the applicant should be discharged for failure to maintain his weight within Army standards.

On 2 February 1993 the applicant underwent a medical examination.  He was five pounds overweight and found to be qualified for separation.

On 7 February 1993 the applicant acknowledged and voluntarily waived his entitlement to have his case considered by an administrative separation board.

On 16 February 1993 the appropriate authority approved the recommendation for discharge and directed that he be issued an Honorable Discharge Certificate 

On 25 May 1993 a medical evaluation board (MEB) convened to evaluate the applicant’s medical condition.  It found that the applicant suffered from bilateral degenerative joint disease of the hips, severe, and right knee degenerative joint disease moderate.  The MEB recommended that the applicant be referred to a physical evaluation board (PEB).  The applicant indicated that he did not desire to remain on active duty, and concurred with the MED findings and recommendation.

On 3 June 1993 a PEB convened to consider the applicant’s medical condition.  It found him to be fit for active duty.

On 8 June 1993 the applicant nonconcurred with the PEB and requested a formal hearing.

On 21 June 1993 a formal PEB convened and again found the applicant fit for duty.  On 1 July 1993 he rebutted this finding.  On 7 July 1993 the PEB reviewed the case and found that no change to the original findings was warranted.  The applicant’s rebuttal did not contain any new evidence that would justify a modification of the recommended findings.

On 27 August 1993 the applicant was honorably discharged from the Army under the provisions of Army Regulation 635-200, chapter 5, for failure to meet body fat standards.  He completed 15 years, 7 months and 4 days of creditable active service.

On 27 June 1994 the VA made a rating decision, awarding the applicant service connection as of 23 August 1993, evaluated at 40 percent disabling, for calve-perthes disease right and left hips, degenerative changes of the right knee and ankles, and residuals right shoulder injury, arthritis.  On 22 July 1996 the VA modified its rating decision, awarding a 60-percent rating, for the above medical conditions and for hypertension, untreated, fracture, left mandible, with TMJ syndrome, residuals, right thumb fracture.  On 29 November 1996 the VA added a 10-percent service connected disability rating for degenerative joint disease, left knee.  On 2 April 1998 the VA awarded a 100-percent disability rating for left total hip from 2 February 1998 and 30 percent after 1 April 1999 based upon contemplated surgery.

In the processing of this case, a staff advisory opinion (COPY ATTACHED) was obtained from the Medical Advisor, Army Review Boards Agency.  It opined that the applicant was found fit because it was an administrative action that ended his career and not a physical disability.  The medical advisor found no evidence that would change the applicant’s discharge.

On 2 November 1998 the applicant rebutted the advisory opinion above, stating that he did not concur with the findings.  His rebuttal did not contain any additional evidence.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-15 contains the authority and outlines the procedures for discharging individuals failing to meet Army body composition/weight control standards.

Title 10, United States Code (U.S.C.), section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.

Title 38, U.S.C., sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations and advisory opinion, it is concluded:

1.  The applicant’s administrative separation for failure to meet body composition/weight control standards was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The applicant’s medical condition was evaluated by a MEB, an informal PEB and a formal PEB all of which found him fit for duty at the time of his separation.  Disability Retirement was precluded since the applicant was found fit for duty.

3.  The applicant has not provided any substantiating evidence to support his contention that his medical problems impaired his ability to lose weight.

4.  An award of a VA rating does not establish entitlement to medical retirement or separation from the Army.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and must assign an appropriate disability rating before he or she can be medically retired or separated.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.


BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ___X_____  DENY APPLICATION




						Loren G. Harrell
						Director


INDEX

CASE ID
AC97-06022
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
19990218
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19930827
DISCHARGE AUTHORITY
AR 635-200
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
108.00
2.

3.

4.

5.

6.