MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 20 MARCH 2003
         DOCKET NUMBER: AR2003084398

         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. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. Luther L. Santiful		Chairperson
Mr. Christopher J. Prosser		Member
Mr. Kenneth W. Lapin		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: In effect, that his records be corrected to show that he was discharged because of a service connected disability, without severance pay, and that his DD Form 214 be changed accordingly.

APPLICANT STATES: That he weighed 197 pounds when he applied for entry to West Point in 1990. When he entered West Point from the preparatory school in 1991 he weighed 230 pounds. He was an interior lineman on the varsity squad for all four years at West Point. Football team members were encouraged to gain weight, especially interior lineman, and were put on a special diet to eat as much as five times a day. Consequently, he was at 310 pounds while playing at West Point. When he was commissioned, his weight was listed as 303 pounds.

He injured his back while playing football, was in pain, and given physical therapy and pain medicine. A fall on the ice in January 1994 did not help. In April 1994 tests showed that he had herniated disks at L2-L3, L3-L4, and L4-L5; nevertheless, he continued to play football despite his pain. His medical records show continuous medical attention and treatment for his back. In April 1996 he was determined to be fit for commissioning, even with a diagnosis of degenerative disk disease. He could not run for any distance and compensation for his back pain caused him to put stress on his legs. He began to suffer leg pains.

He was sent to Fort Sill, Oklahoma after commissioning. His back pain continued and he was given a profile. In March 1997 he experienced pain, not only with running, but with sitting. In April of that year his weight had gone up to 325 pounds in spite of his limited efforts to exercises. He suffered leg muscle pulls because of efforts to compensate for his back pain.

He was determined to be overweight in April 1997. Diet and exercise were recommended even though he was unable to do much exercise. His back pain continued. He was given advice on cold packs and returned to duty. In July 1997 he was unable to pass the physical training test because he could not run. The Army did not accept his back problems as an excuse. He was counseled regarding his weight and his physical training status, and it was made clear to him that if he did not get better, he would be boarded out.

He believed that the way they were eating at the academy had some permanent effect on his weight and build. The 330 pounds that he weighed were a different 330 pounds than his weight while playing football. After graduation, his weight was more due to his inability to keep exercising.

He submitted his resignation because he was facing an administrative discharge because of his weight and his inability to pass the physical training test. He was not afforded a Medical Evaluation Board (MEB). He was not able to control his weight due to his physical limitation, and he could not pass the physical fitness test for the same reason. The Army wanted him to be big from 1991 to 1996, but now wanted him to be small.

Following his discharge, he experienced continued moderate to severe low back pain. He applied to the VA for service connection for his back condition in September 1999. The VA determined that his back condition was service connected and awarded him a rating for low back strain.

He was notified in June 1999 that he was indebted to the government for over $122,000.00. He has tried to get the debt expunged. If his discharge had been for physical disability he would not have to repay the educational cost for the unserved portion of his active duty service commitment.

The applicant submits 11 enclosures with his request as indicated in the evidence of record.

Also included with his case is an appeal on behalf of the applicant from his counsel, dated 3 January 2002, prior to the applicant's 3 January 2003 request to this Board. It appears that counsel's statement was included with the applicant's appeal to the Army Discharge Review Board on 26 June 1992; nonetheless, counsel's contentions are included herewith.

COUNSEL CONTENDS: The applicant is a graduate of West Point who, while a lineman on the football team, was encouraged to gain weight. Upon his graduation, he retained a lot of the weight that he gained. He attempted to stay physically fit; however, when his back ailment restricted his ability to continue his fitness program, his weight ballooned. He was eventually discharged because of his inability to stay within the Army weight requirements.

He is receiving monthly disability compensation from the VA for the back problem he incurred while playing football, and there is no doubt that medically, the back problem occurred and that it substantially affected his ability to keep his weight down.

However, because the Army considered that his weight problems were an intentional act of misconduct, he is indebted to the Army for the cost of his college education, approximately $115,000.00. His credit has been smeared because of the debt. There are exceptions for individuals whose service is shortened because of a disability, or because of other reasons. There are exceptions for special cases.

The applicant was a victim of what could happen by failing to meet the Army's weight control program and the Physical Fitness Test program. When he played for the military academy, no one questioned his weight. Once he was stationed at Fort Sill, Oklahoma, he should have been afforded the opportunity of a Medical Evaluation Board (MEB). He was medically unfit for service because of his back condition.

EVIDENCE OF RECORD: The evidence available is that submitted by the applicant. Neither the documents relating to his resignation, nor his DD Form 214 are available to this Board.

A 20 November 1990 report of medical examination shows that the applicant was 17 years old and weighed 197 pounds. When he applied for his identification card in July 1991 he weighed 230 pounds.

The applicant's medical records show that he was treated for pain in his legs in April and July of 1992, that he had been seen on two occasions for an ingrown toenail, and that he was treated for various minor ailments, while at West Point.

Those records also show that he was seen and treated on more than 20 occasions for low back pain while at West Point. His condition was diagnosed at various times as intermittent low back pain, muscle spasms, L-5 strain, and multiple disk herniations. Those documents show that he was continually using Motrin for his back pain. A March 1996 medical record indicates that he could not take a portion of the physical fitness test because of his profile, and that a bicycle test should be substituted.

A 12 April 1994 MRI of his lumbar spine resulted in a diagnosis of moderate size herniated disk at L2-L3 in the mid line and slightly to the right, as well as a mid line and slightly left sided small to moderate size herniated disk at L3-L4, and a small mid line and right sided herniated disk at L4-L5 impinging on the thecal sac.

When he applied for his identification card on 1 June 1996 he weighed 303 pounds.

The applicant's medical records at Fort Sill show that he was treated for a pulled hamstring to his right leg in August and again in October of 1996. He was seen and treated for low back pain on numerous occasions from January 1997 through September of that year and was placed on profile on at least four instances. However, a 14 July 1997 medical report shows that he was not on profile, but that he was unable to pass the physical fitness test because he failed the run portion to that test. At that time he weighed 331 pounds. The report indicates that there was no identifiable active medical condition which resulted in the physical fitness test failure.

The applicant provides a copy of an extract from Army Regulation 600-8-24 concerning officer eliminations. He provides a list of various codes which are annotated on various military separation documents.

The applicant provides a copy of an extract from Army Regulation 40-501 concerning spine and sacroiliac joints, of which the conditions shown are causes for rejection for appointment, enlistment, and induction. He provides a copy of another extract of that regulation concerning spine, scapulae, ribs, and sacroiliac joints, of which the conditions shown are causes for referral to an MEB.

The applicant provides a copy of a 7 August 2000 VA rating decision showing that he was awarded a 10 percent service connected disability rating for low back strain.

On 26 June 2002 the applicant requested that the Army Discharge Review Board (ADRB) correct his records to reflect a medical discharge. That board indicated that the applicant had requested discharge in lieu of elimination and that he was honorably discharged on 30 September 1997 because of substandard performance of duty; and that he was advised prior to his discharge that he was subject to recoupment of his educational expenses.

The ADRB found that the applicant's circumstances surrounding his discharge plausible and with merit, but found nothing improper with his current discharge; however, based on the unique circumstances of his case, and the negative connotations of the current narrative reason for separation, the board determined
that the narrative reason for his discharge was inequitable. It voted to change the narrative reason for separation to "Miscellaneous/General Reasons," and to change the separation code to "FND." The board determined that there was insufficient evidence to support his contention that he should have been discharged involuntarily, indicating that the evidence showed that he voluntarily submitted a request for resignation in lieu of elimination. The board indicated that his issues regarding a medical discharge and repayment of his educational benefits were not within the purview of the board.

Army Regulation 600-8-24 provides for the elimination of officers for failure to achieve satisfactory progress in the Army weight control program and when no medical problems exist, for two consecutive failures of the Army physical fitness test. It states that, "An officer referred or recommended for elimination who does not meet medical retention standards will be processed through both the provisions of this regulation and through the MEB/PEB [Medical Evaluation Board/Physical Evaluation Board] process …" An officer identified for elimination may tender a resignation in lieu of elimination. A Regular Army officer may request discharge in lieu of elimination.

That regulation also states that when a commissioned officer is being processed for separation or has been referred for elimination action, when it is determined that the officer has a medical impairment that does not meet medical retention standards the officer will be processed as indicated above.

Army Regulation 635-40 establishes the Army physical disability evaluation system 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 provides for medical evaluation boards, which are convened to document a soldier’s medical status and duty limitations insofar as duty is affected by the soldier’s status. A decision is made as to the soldier’s medical qualifications for retention based on the criteria in AR 40-501, chapter 3. If the MEB determines the soldier does not meet retention standards, the board will recommend referral of the soldier to a PEB.

Physical evaluation boards are established to evaluate all cases of physical disability equitability for the soldier and the Army. It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of soldiers who are referred to the board; to evaluate the physical condition of the soldier against the physical requirements of the soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the soldier; and to make findings and recommendation to establish eligibility of a soldier to be separated or retired because of physical disability.

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. There is sufficient evidence to show that the applicant did have problems with his back, both at West Point and at Fort Sill; nevertheless, there is no evidence that the applicant's condition was such that he required processing under the physical disability system, notwithstanding the statements and contentions of the applicant and his counsel.

2. The applicant himself stated that he voluntarily submitted a request for resignation in lieu of elimination action. Absent evidence to the contrary, the separation proceedings were conducted in accordance with the law and applicable regulations. The applicant was presumed to be physically fit for retention at the time of his discharge in 1997. Neither he nor counsel has submitted any medical evidence to refute this presumption.

3. Neither the applicant nor counsel has submitted probative evidence or a convincing argument in support of his request.

4. 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 either requirement.

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

__LLS __ __CJP __ __KWL__ DENY APPLICATION + See dissent form

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

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INDEX

CASE ID	AR2003084398
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030320
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	108.00
2.
3.
4.
5.
6.