MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 7 October 2003
                  DOCKET NUMBER: AR2003087357

         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. Fred N. Eichorn		Chairperson
Ms. Shirley L. Powell		Member
Mr. Robert L. Duecaster		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 corrected to placement on the Retired List, rated disabled.

APPLICANT STATES: He cites several court decisions and states that the Army was “reckless with his health.” He contends that the people processing him for enlistment misrepresented his height on his enlistment physical examination to allow him to meet the already lowered (by waiver) minimum weight requirement.

Because of his limited physical ability, his performance in training was poor. This led to his becoming the focus of his drill sergeant’s attention, and to his being harassed by his fellow recruits. These stressors resulted in his experiencing a nervous breakdown.

He charges that he was medically unfit because he was underweight. He was required to be recycled before discharge action was initiated, a requirement which was not met in his case. He was also required by regulations in effect at the time to undergo a physical examination prior to being discharged.

The applicant also charges that the record of a psychiatric evaluation he took is not a part of his military records, even though there are several references to that evaluation.

In support of his request, he submits the second page of his enlistment physical examination, which shows that he was initially medically disqualified for enlistment because of his weight. The treating physician stated that the applicant should be reevaluated in three months from the date of the initial physical examination.

The applicant also submits a chronological record of medical care in which he is treated for a sore throat and possible bronchitis.

He provides the Board an office note from a civilian physician, dated 11 July 2002. In that note the physician stated that he had been treating the applicant since April 1998. He diagnosed the applicant as having obsessive-compulsive personality with panic disorder, and mild depressive illness.

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

He enlisted in the Regular Army on 30 November 1973. He enlisted for the medical remedial enlistment program.

On 7 February 1974, an evaluation for discharge for enlistees before 180 active duty days (FJ Form 8) was initiated. The individual initiating the form stated that


the applicant had been assigned from an organization where the applicant had been sent to gain weight. However, he was still 10 pounds underweight. The applicant would not talk about his weight to either his drill sergeants or fellow trainees. “His difficulties were evidenced by fits of crying when teased by the trainees or by physical shaking and crying when being corrected by a drill sergeant. Attempts to talk to [the applicant] were almost futile in that he always broke down and cried rather than talked.”

The applicant’s platoon sergeant added that the applicant would not mix with the other trainees. He would sit alone on his bed and cry, which led to teasing from the other trainees. Any attempt to talk to the applicant only resulted in him crying and saying that he could not make it in the Army. The applicant was awkward in his drill movements but any attempts at correction only led to the same fits of crying and shaking. His nervous attitude caused him to constantly make mistakes and was keeping him from learning. The applicant had stated that he had no desire to remain in the Army.

In a second counseling session, it was stated that the applicant had been sent to mental hygiene (the mental hygiene evaluation is not a part of the applicant’s records). The applicant was urged to use the Army as a vehicle to help solve his problems.  “He was then returned to training and given all individual attention possible. [The applicant] has made no progress since that time. He has stated that he likes to be by himself and cannot adjust to living with a large number of people. He seems to have made no friends since entering service and seems unwilling to make any.”

On 12 February 1974, the applicant was given a psychiatric evaluation. The psychiatrist determined that the applicant suffered from situational adjustment reaction, chronic, moderate; manifested by anxiety, difficulty in interpersonal relations, mildly depressed effect. The psychiatrist determined that this condition existed prior to the applicant’s enlistment and was therefore not in line of duty. The psychiatrist determined that the applicant met the medical retention standards and concluded that he had no mental defects sufficient to warrant disposition through medical channels.

On 19 February 1974, the applicant’s commander notified the applicant of his intent to recommend his discharge due to his lack of motivation. The applicant waived his right to have counsel assist him in explaining the discharge procedures; he waived his right to a separation medical examination; and he waived his right to make statements in his own behalf.

Accordingly, on 22 February 1974, the applicant was honorably discharged by reason of Trainee Discharge Program certificate.

On 27 November 1974, a DD Form 215, Correction of DD Form 214, was issued which changed the applicant’s reentry (RE) code and corrected the tables cited on his separation document which would apply if the applicant desired to reenlist.

Army Regulation 635-200, Enlisted Personnel, sets forth the basic authority for the separation of enlisted personnel from the Army. Paragraph 5-33 of this regulation, which incorporated Department of the Army Message 011510Z, August 1973, governed the Trainee Discharge Program (TDP). This program provided for the separation of service members who lacked the necessary motivation, discipline, ability or aptitude to become productive soldiers or have failed to respond to formal counseling. The regulation essentially requires that the service member must have voluntarily enlisted, must be in basic, advanced individual, on the job or service school training prior to award of a military occupational specialty and must not have completed of more than 179 days of active duty on their current enlistment by the date of separation. The regulation provided that soldiers may be separated when they have demonstrated that they are not qualified for retention due to failure to adapt socially or emotionally to military life; cannot meet minimum standards prescribed for successful completion of training because of lack of aptitude, ability , motivation, or self-discipline; or have demonstrated character and behavior characteristics not compatible with satisfactory continued service. When a soldier is being considered for separation under this authority, the soldier must be provided the right to consult with counsel if a general discharge is being recommended. This paragraph does not provide soldiers being processed under its provisions any other rights.

Paragraph 5-31 of this regulation, Erroneous Enlistment, states that when it is established that an enlistment is erroneous because the soldier did not meet the qualifications of enlistment, the soldier will be discharged at his or her request.

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.

Army Regulation 40-501, Medical Services, Standards of Medical Fitness, paragraph 3-35, in effect at the time, personality, sexual or factitious disorders, disorders of impulse control not elsewhere classified, and psychoactive disorders, states that these conditions may render an individual administratively unfit rather than unfit because of physical disability.   Interference with performance of effective duty in association with these conditions will be dealt with through appropriate administrative channels.

Chapter 2 of this regulation lists the Army’s procurement medical fitness standards. Underweight and overweight conditions are contained in this chapter.  Paragraph 2-2b of this regulation states “This paragraph . . . prescribes the medical conditions and physical defects which are causes for rejection for appointment, enlistment, and induction into military service.”

Chapter 3 of this regulation lists the Army’s retention medical fitness standards. This chapter does not contain underweight or overweight conditions. Paragraph 3-1 of this regulation states “This chapter gives the various medical conditions and physical defects which may render a soldier unfit for further military service and which fall below the standards required for [soldiers].” As such, neither underweight nor overweight conditions are considered medically disqualifying for retention, a prerequisite for being separated due to physical unfitness.

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. When the applicant initially attempted to enlist, he was determined to be medically disqualified under procurement standards and was not accepted. Although not a matter of record, it must be presumed that he subsequently met the minimum weight standards, or that his enlistment without meeting the minimum allowable weight was acceptable under the remedial enlistment program. The applicant has not submitted any evidence to show otherwise.

2. As such, the Board concludes that the applicant was properly enlisted. However, even if his enlistment was erroneous, it would not provide the grounds to discharge him due to physical disability. Underweight and overweight conditions are medically disqualifying for procurement, not retention. If he had enlisted while underweight, he would have been processed for separation due to erroneous enlistment.

3. The applicant has not provided any evidence to show that he had a medically disqualifying condition while he was on active duty. The only medical evidence of record is the psychiatric examination, wherein he was determined medically qualified for retention. The only medical evidence submitted by the applicant is a civilian physician’s note. That physician stated that he started treating the applicant over 24 years after his discharge.

4. The civilian physician’s diagnosis of obsessive-compulsive personality with panic disorder, if it had existed at the time of the applicant’s military service, would not have warranted his separation due to physical unfitness. A personality disorder is administratively disqualifying, not medically disqualifying.

5. There is no indication that the civilian physician’s other diagnosis, mild depressive illness, if it had existed at the time of the applicant’s military service, would have been determined medically disqualifying or physically unfitting.
6. It is evident from the statements provided by the applicant’s training noncommissioned officers that he simply could not adapt to group living. Based on this observation, his trainee discharge appears to have been the appropriate course of action for his command to have pursued.

7. Contrary to the applicant’s contention, there was no requirement for individuals being considered for a trainee discharge to be recycled or to undergo a physical examination.

8. 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

___slp ___ ___rld___ ____fne_ DENY APPLICATION

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

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INDEX

CASE ID	AR2003084540
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20031007
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.
2.
3.
4.
5.
6.