MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 13 May 2003
         DOCKET NUMBER: AR2002081122

         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
Ms. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Ms. Margaret K. Patterson		Chairperson
Mr. Ted S. Kanamine		Member
Mr. Lawrence Foster		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 honorable discharge be changed to a medical discharge.

APPLICANT STATES: That he was to be medically retired after his knee operation in October 1989. In a letter of explanation, dated 28 October 1997, provided in an earlier application that was closed without action by the Army Board for Correction of Military Records, the applicant contends that he injured his right knee during physical training in 1989. He states that he underwent knee reconstruction in October 1989 and started physical therapy in February 1990. He contends that he was getting a lot of static from his first sergeant because of his inability to perform physical training. He states that he spoke to his doctor about the situation, that he was placed in the medical holding detachment and his doctor recommended that he be discharged under medical reasons. He goes on to state that he was directed to report back to his previous company for weigh-in and a tape test. He indicates that the tape test revealed he was two percent over his body fat and he was told he would have to lose the weight. He states that he explained to his first sergeant that he was now in the medical detachment, that he had not completed his physical therapy and he was awaiting orders for a medical discharge. He contends that his first sergeant told him that even though he was attached to a medical holding platoon he was still responsible for all sanctions from his assigned unit and because of that they recommended that he be discharged under the weight control program. He states that he was not given the required time to fully recover from his operation nor did his unit take into consideration that he was awaiting a medical discharge.

In support of his application, he submits numerous copies of his Army medical records and Veterans Affairs clinical records.

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

The applicant entered active duty on 4 December 1979. He successfully completed One Station Unit Training in military occupational specialty 31M (multichannel communication equipment operator) and served two tours in Germany.

The applicant's medical records show that he was diagnosed with synovitis (inflammation) of the right knee and tendinitis (inflammation of tendons) in 1980. In November 1982, the applicant sprained his right knee while playing basketball. In July 1983, the applicant was seen in the Orthopedic Knee Clinic for complaints of right knee pain and he was diagnosed as having chondromalacia (abnormal softness of cartilages) patella (kneecap). In August 1983, the applicant was reevaluated for right knee pain in the medial parapatellar (pertaining to the patella) region and a diagnosis of possible medial meniscus (a crescentic interarticular fibro-cartilage) tear was given. He was seen in follow-up and a diagnosis of patellofemoral (pertaining to the patella and the femur) pain was given. In June 1984, the applicant was seen for complaints of right knee swelling and pain. He was referred to the Orthopedic Clinic and evaluated which resulted in the granting of a temporary profile based on right knee symptoms.

The applicant's service personnel records show that he was counseled for being overweight on 25 August 1986. Records show that on 27 October 1988, the applicant was removed from the weight control program. The date the applicant entered the weight control program is not available. Approximately four months later, the applicant exceeded the screening table weight and the body fat standard, he was flagged and entered in a weight control program on 1 March 1989.

Records show the applicant exceeded the height and/or weight tables of Army Regulation 600-9 for the months of June, July, August and November 1989.

The applicant's medical records show that in September 1989 he complained of recurrent problems with the right knee and he was referred to Orthopedics. The orthopedic evaluation culminated in surgery for patella realignment of the right knee on 6 October 1989.

On 11 December 1989, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 5-15, for failure to meet weight standards. The unit commander cited that the applicant had been on the weight control program since January 1989, that he had 44 counseling statements and 4 letters of indebtedness. The unit commander recommended that the applicant receive an honorable discharge.

On 11 December 1989, after consulting with counsel, the applicant requested consideration of his case by an administrative separation board. On 23 March 1990, after consulting with counsel, the applicant voluntarily waived his request for consideration of his case by an administrative separation board and elected not to submit any statements on his behalf.

On 26 February 1990, the applicant was issued a permanent 2 Physical Profile under lower extremities for right knee pain. However, the applicant's NCO [Noncommissioned Officer's] Evaluation Report covering the period September 1989 through March 1990 shows the entry, "profile does not hinder soldier's duty performance" in Part IVc (Values/NCO Responsibilities - Physical Fitness & Military Bearing).

On 26 March 1990, the separation authority approved the recommendation to discharge the applicant under the provisions of Army Regulation 635-200, chapter 5-15, for failure to meet Army weight control standards. He directed that an Honorable Discharge Certificate be furnished to the applicant. Also, a flag was removed based on the approved administrative separation.
On 30 March 1990, the applicant underwent a separation physical examination and was found to be qualified for separation or retention with a physical profile of 112111.

Accordingly, the applicant was discharged with an honorable discharge on 4 April 1990 under the provisions of Army Regulation 635-200, chapter 5-15, for failure to meet Army weight control standards. He had 10 years, 4 months and 1 day of total active service.

There is no evidence in the applicant's service personnel records that he was recommended for disability processing.

Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. Paragraph 5-15 specifically provides that soldiers who fail to meet the body composition/weight control standard set forth in Army Regulation 600-9 may be separated per this paragraph when such condition is the sole basis for separation. Separation action may not be initiated under this paragraph until the soldier has been given a reasonable opportunity to comply with and meet the weight/body fat reduction goals prescribed for him or her by health care personnel. Soldiers who have been diagnosed by health care personnel as having a medical condition which precludes them from participating in the Army body composition/weight control program will not be separated under this paragraph. The characterization of service for soldiers separated under this provision of regulation will be honorable.

Army Regulation 600-9 (The Army Weight Control Program) implements the guidance in DOD Directive 1308.1 which establishes a weight control program in all the Services. This regulation applies to all members of the Active Army, the Army National Guard (ARNG) and the U.S. Army Reserve (USAR) to include those ARNG and USAR personnel in Active Guard/Reserve (AGR) status. This regulation states, in pertinent part, that following removal from a weight control program, if the unit commander determines that the individual exceeds the screening table weight and the body fat standard within 12 months from the date of the previous removal from the program and no underlying or associated disease process is found as the cause of the condition, the individual will be subject to separation from the Service under the provisions of Army Regulation 635-200, chapter 5-15.

Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted. Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric. Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment. Numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty. The individual should receive assignments commensurate with his or her functional capacity.

Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 3-2b, as amended, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

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. The Board considered the applicant's contention that he was to be medically retired after his knee operation in October 1989. However, there is no evidence of record, and the applicant has provided no evidence, which shows that he was recommended for disability processing.

2. The Board considered the applicant's contention that he was not given the required time to fully recover from his knee operation. However, medical evidence of record shows that prior to the applicant's separation on 4 April 1990, competent medical authority determined that he was then medically qualified for separation with a physical profile of 112111.

3. Evidence of record shows the applicant was removed from the Army Weight Control Program on 27 October 1988. Approximately four months later, the applicant exceeded the screening table weight and the body fat standard and was entered in the Army Weight Control Program on 1 March 1989. Based on the foregoing, and in accordance with Army Regulation 600-9, the applicant was separated from active duty for failure to meet Army weight control standards, not as the result of a medical condition.

4. The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights. The type of discharge directed and the reasons therefore appear to be appropriate considering all of the facts of the case.
5. 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.

6. 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

MKP___ TSK____ LF________ DENY APPLICATION

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

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INDEX

CASE ID	AR2002081122
SUFFIX
RECON
DATE BOARDED	20030513
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	19900404
DISCHARGE AUTHORITY	AR 635-200 Chapter 5-15
DISCHARGE REASON	Failure to meet Army weight control standards
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	108.0000
2.
3.
4.
5.
6.