MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 19 July 2001
         DOCKET NUMBER: AR2001054961

         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.

Mr. Carl W. S. Chun		Director
Mrs. Nancy Amos		Analyst

The following members, a quorum, were present:

Mr. Mark D. Manning		Chairperson
Mr. Lester Echols		Member
Ms. Gail J. Wire		Member

         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 her separation code be changed to one that will show she was discharged due to a service-connected medical problem and that will allow her to retain the enlistment bonus paid her.

APPLICANT STATES: That her hypothyroidism caused her weight problems. Her back condition caused her to be in treatments three times a week which is also a service-connected disability . So she was gaining weight because of the thyroid condition and she was unable to exercise because of the profile. This resulted in her discharge for weight gain and a recoupment of her enlistment bonus.

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

Her enlistment physical examination dated 19 June 1998 showed that she was initially not qualified for enlistment due to overweight (63 inches and 186 pounds). She qualified for enlistment on 30 December 1998 with a weight of 164 pounds. (She was still over her maximum allowable weight by 23 pounds but met the body fat standards – 33.58 percent versus 34 percent allowable.) She enlisted in the Regular Army on 30 December 1998 for 4 years in military occupational specialty (MOS) 88M (Motor Transport Operator) for an enlistment bonus of $5,000.

The applicant completed basic training and advanced individual training and was awarded MOS 88M.

In June 1999, the applicant was given a temporary profile for shin splints.

It had been noted on 1 and 4 June 1999, when the applicant was treated for a complaint of chronic shin pain and knee popping, that she was in poor physical condition and overweight. It appears she was first counseled for being overweight (at 174 pounds) on 21 July 1999 and first referred for weight loss on 23 July 1999.

On 26 August 1999, the applicant was removed from the weight control program. In November 1999, she was re-entered into the program (at 182 pounds).

On 16 December 1999, the applicant was given a 30-day temporary profile for mechanical low back pain and assignment limitations of no sit ups, no unit physical training, no marching and no running. She could do physical training as directed by a physical therapist.

In January 2000, the applicant’s weight was 189 pounds.

On 19 January 2000, the applicant completed a separation physical examination and was found qualified for separation.
In February 2000, the applicant’s weight was 193 pounds.

In February 2000, it was determined that the applicant’s overweight condition was not due to a medical condition.

On 21 March 2000, the applicant’s commander initiated action to separate the applicant for failure to meet body fat standards. On 22 March 2000, the applicant was advised by counsel of the basis for the contemplated action. She submitted no statements in her own behalf.

On 22 March 2000, the applicant’s commander formally recommended her separation for failure to meet body fat standards. On 22 March 2000, the appropriate authority approved the recommendation.

On 23 March 2000, the applicant was diagnosed with hypothyroidism and was started on Synthyroid even though her lab work, except for her Thyroid Stimulating Hormone (TSH) level, had been within normal limits at all times. Her TSH level rose from 3.08 in July 1999 to 4.67 in March 2000.

On 14 April 2000, the applicant was released from active duty under the provisions of Army Regulation 635-200, chapter 18 for weight control failure. She had completed 1 year, 3 months, and 15 days of creditable active service with no lost time.

On 12 December 2000, the applicant was notified by the Defense Finance and Accounting Service that she owed $3,385.42 in an unearned enlistment bonus.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 18 provides that soldiers who fail to meet the body fat standards set forth in Army Regulation 600-9 are subject to separation when such condition is the sole basis for separation. Separation action may not be initiated until the solider has been given a reasonable opportunity to comply with and meet the body fat standards. Paragraph 7-15 provides that a soldier may be separated on the basis of an erroneous enlistment. An enlistment is erroneous if it would not have occurred had the relevant facts been known by the Government or had appropriate directives been followed, it was not the result of fraudulent conduct on the part of the soldier, and the defect is unchanged in material respects.

Army Regulation 601-210 prescribes criteria governing the enlistment of persons into the Regular Army and the U. S. Army Reserve. In pertinent part it states that the enlistment bonus (EB) is an enlistment incentive offered to those enlisting in the Regular Army for duty in a specific MOS. The objective of the bonus is to increase the number of enlistments in MOSs that are critical and have inadequate first-term manning levels. One of the eligibility criteria is that the soldier must enlist for an initial term of at least 3 or 4 years for the appropriate enlistment option. The bonus will be paid in one lump sum up to a maximum of $5,000 to the soldier upon arrival at the first duty station. Bonus award levels in excess of $5,000 will be paid in equal increments.

The Department of Defense Financial Management Regulation, volume 7A, paragraph 090403 states that, for the purpose of recouping any unearned portions of an enlistment or reenlistment bonus, the term “who voluntarily or because of misconduct” includes (but is not limited to) soldiers separated for a number of listed reasons such as disability not in line of duty, misconduct, and defective enlistment (including erroneous and fraudulent enlistment). It also includes reasons as directed by the Secretary of the Military Department concerned in individual cases including pregnancy, parenthood, and personality disorder (an administrative discharge).

Army Regulation 40-501 governs medical fitness standards for enlistment, retention, and separation. In pertinent part, it states that hypothyroidism, symptomatic or uncontrolled by medication, is a cause for rejection for entrance.

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. In pertinent part, it states that under the laws governing the Army Physical Disability Evaluation System, soldiers who sustain or aggravate physically unfitting disabilities must meet the following line of duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training; and (2) the disability must not have resulted from the soldier’s intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence.

A review of the causes, incidence, and risk factors of hypothyroidism revealed that primary hypothyroidism may cause a variety of symptoms and may affect all body functions. The body’s normal rate of functioning slows causing mental and physical sluggishness. Risk factors include being over 50 years old, being female, obesity, thyroid surgery, and X-ray or radiation treatments to the neck.

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

1. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.
2. There is no evidence to conclusively show that the applicant’s hypothyroidism caused her overweight condition. The Board notes that obesity is one of the risk factors for causing hypothyroidism. All her lab work was within normal limits at all times except in March 2000, when her TSH level rose. It is possible that her weight gain from 174 to 198 ½ pounds during the period July 1999 to March 2000 caused the rise in her TSH level.

3. 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

__mdm___ __le____ __gjw___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

---

INDEX

CASE ID	AR2001054961
SUFFIX
RECON
DATE BOARDED	20010719
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	110.02
2.
3.
4.
5.
6.