MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 27 September 2001
         DOCKET NUMBER: AR2001059203

         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
Mr. Edmund P. Mercanti		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor		Chairperson
Mr. Eric N. Andersen		Member
Mr. Thomas E. O'Shaughnessy		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)

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APPLICANT REQUESTS: That his discharge for weight control program failure be corrected to a medical discharge.

APPLICANT STATES: His medical records will support his request.

The applicant submits a letter from his wife to their elected representative in support of his application. In that letter she relates how her husband’s shins became painful on long marches where he had to carry a rucksack. He was prescribed pain medication and given profile restrictions for his shin pain. However, in contravention of the profile limitations, her husband’s first sergeant forced him to run and march with a rucksack. This lead to her husband experiencing intolerable pain while walking. Initial examinations, including interpretation of x-ray images of the shins, resulted in a diagnosis of shin splints. However, a subsequent nuclear bone scan showed that her husband had a “near stress fracture of the right shin.” She then states that her husband was a good soldier who always passed his physical training tests, and who had been on the Army Weight Control Program (AWCP) for some time. She adds that her husband’s processing for separation due to weight control failure had to be started over because of the paperwork on his overweight condition “was conveniently missed placed.”

In support of his request the applicant also submits a radiology examination report dated 19 May 1998 which shows the applicant did not have a stress fracture, but had bilateral shin splints, the right worse than the left.

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

He enlisted in the Regular Army on 21 April 1994, was awarded the military occupational specialty of satellite communications systems repairer, and was promoted to pay grade E-5.

On 3 February 1998 the applicant was found to weigh 209 pounds and have a body-fat content of 25.53 percent. The maximum allowable weight for his height and age was 189 pounds, and the maximum allowable body-fat content was 22 percent. The applicant was then entered into the AWCP.

On 9 February 1998 the applicant had a suspension of favorable personnel actions (commonly referred to as a flag) imposed against him due to his being found to exceed the allowable body-fat standards for his age.

The applicant was weighed periodically, with his weight recorded as 201 pounds on 3 April 1998, 204 pounds on 30 April 1998, 213 pounds on 1 June 1998, and 226 pounds on 26 August 1998.

On 24 September 1998 the applicant was given a separation physical examination. In the report of medical history the applicant completed, he stated “I’m in good health.” The physician conducting the examination concluded that the applicant was qualified for separation due to AWCP failure. The physician did not impose any physical profile restrictions on the applicant.

On 29 September 1998 the applicant was notified by his commander of his intent to recommend his separation due to AWCP failure, and of his rights in conjunction with that recommendation. The applicant waived all of his rights.

On 29 September 1998 the applicant’s commander recommended his separation due to AWCP failure. That recommendation was approved and the applicant was honorably discharged on 30 October 1998. He had 4 years, 6 months and 10 days of active service.

Army Regulation 635-40 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board. Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition. For example, a noncommissioned officer who receives above average evaluation reports and passes Army Physical Fitness Tests (which have been modified to comply with the individual’s physical profile limitations) after the individual was diagnosed as having the medical disqualification would probably be found to be fit for duty.  The fact that the individual has a medically disqualifying condition does not mandate the person’s separation from the service. Fitness for duty, within the perimeters of the individual’s grade and military specialty, is the determining factor in regards to separation. If the PEB determines that an individual is physically unfit, it recommends the percentage of disability to be awarded which, in turn, determines whether an individual will be discharged with severance pay or retired. An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.   In this regard, the Army rates only conditions determined to be physically unfitting, thus compensating the individual for loss of a career.

Title 10, U.S. Code, chapter 61, Retirement or Separation for Physical Disability, provides for the medical retirement and for the discharge for physical unfitness, with severance pay, of soldiers who incur a physical disability in the line of duty while serving on active or inactive duty. However, the disability must have been the proximate result of performing military duty.

The Hughston Sports Medicine Foundation addresses shin splints and stress fractures as follows: “Shin splints is a term used to describe pain in the lower leg that occurs during exercise. This condition has many causes and can affect athletes at all fitness levels. One common cause of shin splints is posterior tibial syndrome (PTS). The pain associated with PTS occurs on the medial (inside) border of the tibia (shin bone). The pain present when you start exercising becomes less severe as you warm up but becomes worse than ever after you stop exercising. Posterior tibial syndrome often occurs in beginning runners, who are unaccustomed to the activity and running surface, but can occur in seasoned athletes when they change running surfaces, exercise in different shoes, or increase their intensity or duration of exercise. The condition most commonly mistaken for PTS is a stress fracture. A stress fracture of the tibia is a crack that develops in the shin bone over time from repetitive stress on the bone. Normally, your muscles absorb the shock put on your legs during activity. When you continuously pound your legs during an activity, such as distance running, soccer, or basketball, your muscles tire, losing much of their ability to absorb shock. When your muscles do not absorb shock well, stress on the bone increases. The bone cannot endure the increased stress so it begins to crack. To help detect a stress fracture, your doctor may take x-rays or a bone scan. However, these fractures can be quite difficult to diagnose because they may not show up on x-rays when they first develop. The treatment for shin splints must be tailored for each person according to whether the cause is PTS or a stress fracture and considering the person’s exercise habits. The most important form of treatment for PTS is rehabilitative exercises. Stretching before and after running, particularly the calf muscles, and strengthening your leg muscles through progressive resistance exercise usually help relieve the symptoms of PTS. In addition to rehabilitative exercises, your doctor and physical therapist may recommend some combination of changes in footwear, exercise intensity and duration, and running surface. Also, taking anti-inflammatory medications, such as aspirin or ibuprofen, and applying ice to the tender area immediately after exercise can help relieve symptoms. Your doctor may recommend you use orthotics (shoe inserts) to help support your foot and relieve stress in your leg. A person with compartment syndrome occasionally needs surgery to relieve the pressure in the muscle compartment. Stress fractures will heal in several weeks with rest, although you may need to wear a cast or brace. Your doctor may suggest swimming or riding a bicycle during this time to maintain cardiovascular activity while allowing the bone to heal.”

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

1. The applicant was determined medically qualified for separation at his separation physical examination. It is noted that the applicant stated that he was in good health and did not mention shin splints or stress fractures at that time.
2. Without a finding of medical disqualification, there was no basis to consider the applicant for a medical discharge or retirement.

3. While the applicant suffered from shin splints, that condition is remedial. As such, that condition would not have qualified the applicant for medical discharge or retirement.

4. The applicant exceeded the AWCP standards and continued to gain weight. At the time of his separation he was 22 pounds heavier then when he was placed on the AWCP. That weight gain certainly formed a basis for discharging the applicant for AWCP failure.

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

___rvo ___ ____ena ____teo _ DENY APPLICATION

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

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INDEX

CASE ID	AR2001059203
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20010927
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	108.04
2.
3.
4.
5.
6.