RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 April 2008
	DOCKET NUMBER:  AR20070013753 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  




Director



Analyst

      The following members, a quorum, were present:


M

Chairperson

M

Member

M

Member
	The Board considered the following evidence: 

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).



THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests reinstatement in the Regular Army with all back pay and allowances, or such relief as the Army Board for Correction of Military Records (ABCMR) may direct.

2.  The applicant made a statement through her counsel. 

3.  The applicant provided the following additional documentary evidence in support of her application:

      a.  DA Form 2166-8 [Noncommissioned Officer (NCO) Evaluation Report] for the periods 200206 to 200305; 200306 to 200312; and 200408 to 200507.

	b.  DA Form 3349 (Physical Profile), dated 25 March 2002.

	c.  Standard Form (SF) 600 (Chronological Record of Medical Care), Womack Army Medical Center, Fort Bragg, North Carolina, from 31 December 2004 to 27 November 2006.

	d.  Headquarters, 35th Signal Brigade (Airborne), Fort Bragg, North Carolina, Summary of Administrative Separation Board Proceedings, dated 15 June 2006.

	e.  Headquarters, 51st Signal Battalion (Airborne), Fort Bragg, North Carolina, Memorandum For Record: Separation Board Minority Report, dated 26 June 2006.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant’s reinstatement on active duty, referral to an appropriate medical evaluation board, and administrative proceedings be conducted in strict accordance with Army Regulations.

2.  Counsel states the following in a 9-page document:

      a.  on 15 June 2006, the applicant appeared before a formal administrative board pursuant to Army Regulation 15-6 (Procedures for Investigating Officers and Board of Officers) to determine if she should be discharged pursuant to chapter 18 of Army Regulation 635-200 (Personnel Separations) for being overweight.  The board recommended the applicant be discharged.  However, a majority of the board recommended that the separation be suspended.  A review of the proceedings and the applicant’s records raises questions about the legality of the proceedings and correctness of the board’s decision.  Accordingly, the applicant should be reinstated and referred to a medical board for potential medical and mental health issues.  If considered for separation, she should be allowed to present her case before a duly appointed administrative board conducted to standards and with adequate representation by military counsel.   

	b.  the board proceedings show the board conducted two “off the record” sessions outside the applicant’s presence, in violation of the governing regulation.  Additionally, the board president made a minority report recommending against the applicant’s suspension while making reference to matters not presented to the board and not in the record.  

      c.  the applicant’s previous military counsel made no opening or closing statements, presented no evidence or witnesses, offered no evidence concerning the applicant’s medical records, and participated in the two “off the record” sessions with the board without objection.  This performance by the applicant’s previous counsel raises questions as far as the effectiveness of the legal representation and overall fairness of the separation process.   

CONSIDERATION OF EVIDENCE:

1.  The applicant was a Regular Army staff sergeant (SSG)/E-6 who enlisted on 15 August 1990 and subsequently executed several extensions and/or reenlistments in the Regular Army.  She held military occupational specialty (MOS) 25Q (Multi-Channel Transmission Systems Operator).  She was promoted to sergeant (SGT)/E-5 on 21 February 1997 and to SSG/E-6 on 1 January 2001. She served in Afghanistan from 26 October 2002 to 26 April 2003 and in Iraq from 1 November 2004 to 15 November 2005.    

2.  The applicant’s awards and decorations include the Joint Service Commendation Medal, the Army Commendation Medal, the Army Achievement Medal (4th Award), the Good Conduct Medal (4th Award), the National Defense Service Medal (2nd Award) the Armed Forces Expeditionary Medal, the Iraq Campaign Medal, the Global War on Terrorism Service and Expeditionary Medals, the Noncommissioned Officer Development Ribbon (2nd Award), the Army Service Ribbon, the Overseas Service Ribbon (4th Award), and the Driver and Mechanic Badge (Wheeled Vehicle Clasp).  



3.  In August 2004, the applicant was assigned to D Company, 327th Signal Battalion (Airborne), Fort Bragg, North Carolina.  Throughout her assignment to this unit, at the age of 33 years, she participated in several monthly unit weigh-ins as follows:

Weigh-In Date
Height and Weight
Max Weight Allowed
Gain or Loss
Actual Body Fat %
Max Body Fat %
% Over/ Under
10 Jun 05 
62”/203 lbs
132 lbs

37.86%
34.00%
3.86%
22 Jul 05
62”/206 lbs
132 lbs
+3 lbs
39.08%
34.00%
5.08%
13 Aug 05
62”/200 lbs
132 lbs
-6 lbs
39.86%
34.00%
5.86%
13 Sep 05
62”/198 lbs
132 lbs
-2 lbs
39.08%
34.00%
5.08%
25 Oct 05
62”/196 lbs
132 lbs
-2 lbs
37.24%
34.00%
3.24%
28 Nov 05
62”/195 lbs
132
-1 lbs
38.48%
34.00%
4.48%
Dec 05
No Weigh-in
OIF 
Return



6 Jan 06
62”/203 lbs
132 lbs
+8 lbs
38.53%
34.00%
4.53%
9 Feb 06
62”/205 lbs
132 lbs
+2 lbs
38.73%
34.00%
4.73%
10 Mar 06
62”/205 lbs
132 lbs
0 lbs
39.19%
34.00%
5.19%
10 Apr 06
62”/201 lbs
132 lbs
-4 lbs
40.88%
34.00%
6.88%
5 May 06
62”/197 lbs
132 lbs
-4 lbs
38.28%
34.00%
4.28%
14 Jun 06
62”/193 lbs
132 lbs
-4 lbs
38.68%
34.00%
4.68%
4.  The applicant’s records indicate that after each weigh-in, the applicant’s first sergeant conducted a counseling session with her, listing on each counseling form the applicant’s current weight and body fat compared to the previous month's and the applicant was provided a clear and safe attainable weight loss goal.  

5.  The applicant's records show that she regularly participated in the unit’s physical fitness training while serving in Iraq. 

6.  On 16 June 2005, by memorandum, the applicant’s immediate commander notified the applicant that she was determined to have exceeded body fat standards of Army Regulation 600-9 (Army Weight Control Program) and that a goal of 3 to 8 pounds of weight loss per month was considered to be satisfactory progress.  The immediate commander further stated that failure to make satisfactory progress or achieve the body fat standard could result in the applicant’s separation from the Army.  The applicant acknowledged receipt of the memorandum on the same day.  

7.  The applicant’s weight fluctuated after the notification and although she made progress from July through November 2005, she continued to exceed both, weight and body fat standards.   

8.  On 1 November 2005, by memorandum, the applicant’s immediate commander notified the applicant that she had exceeded the body fat standards of Army Regulation 600-9; that she was entered in the Army Weight Control Program, and that a goal of 3 to 8 pounds of weight loss per month was considered to be satisfactory progress.  The immediate commander further stated that the applicant’s failure to make satisfactory progress or achieve the body fat standards could result in the applicant’s separation from the Army.  Subsequent to the applicant’s acknowledgement of the notification memorandum on the same day, the immediate commander, by memorandum, requested the applicant undergo a physical evaluation at Womack Army Medical Center, Fort Bragg, North Carolina.

9.  On 9 November 2005, by memorandum, a military medical doctor at the Clarke Health Clinic, Womack Army Medical Center, responded to the applicant’s immediate commander and stated that the “cause of the over weight is not due to medical condition.” 

10.  On an unknown date in November 2005, by memorandum, the applicant’s immediate commander requested the applicant undergo nutrition education and weight reduction counseling.  The applicant completed Session I of the nutrition counseling on 22 November 2005, Session II on 30 November 2005, and Session III on 1 December 2005.   

11.  On 1 December 2005, by memorandum, the applicant’s immediate commander certified that the applicant was provided with nutrition education and weight reduction counseling.  

12.  On 28 February 2006, by memorandum, the military medical doctor at the Clarke Health Clinic, Womack Army Medical Center, informed the applicant’ commander that the “cause of the over weight is not due to medical condition.”

13.  On 14 March 2006, by memorandum, the applicant’s immediate commander requested the applicant undergo a physical evaluation at Womack Army Medical Center.  Accordingly, the applicant underwent a medical examination at Womack Army Medical Center on 15 March 2006.  


14.  On 10 April 2006, the applicant’s immediate commander notified the applicant of her (the commander’s) intent to initiate separation action against her (the applicant) for failing to meet body fat standards in accordance with chapter 18 of Army Regulation 635-200.  The immediate commander remarked that the applicant was entered on the body fat reduction program on 1 November 2005 and as of 9 February 2006, she had failed to make satisfactory progress in attaining body fat standards.  The immediate commander further added that the applicant was evaluated by health care personnel and was found to have no medical condition that precluded her participation in the Army body fat reduction program.  The immediate commander further recommended an honorable discharge.  

15.  On 11 April 2006, the applicant consulted counsel concerning the basis of the contemplated action to separate her for failing to meet body fat standards and its effects, and of the rights available to her and the effect of any action taken by her in waiving any of her rights.  She elected consideration of her case by an administrative board, requested personal appearance before the administrative board, and elected to submit statements on her behalf.  

16.  On 16 April 2006, the applicant submitted a statement of rebuttal to the separation authority.  In her statement, the applicant requested a probationary period, suspension of the chapter 18 proceedings, and that she be allowed a chance to prove to her chain of command that if she were given adequate time, the “Weigh to Stay” program would work.  [The "Weigh to Stay" program, used by the Womack Army Medical Center, is a standardized series of three sessions designed to provide Soldiers with the tools they need to succeed on a weight loss program].  She also stated that health care personnel advised her that the diet she was using was not healthy, she tried the “Weigh to Stay” program, but with no immediate results, a fact that she states she relayed to her first sergeant during counseling sessions.  She further added that she completed the “Weigh to Stay” Nutrition Counseling Program, a new comprehensive program that includes three sessions on topics including nutrition, fad diets, supplements, exercise, behavior modifications, and meal planning.  She also remarked on her left ankle injury that occurred prior to November 2004 and her inability to seek medical treatment before and during deployment to Iraq.  She contended that she was not given adequate time to make progress in the weight program and that the chain of command misinterpreted the regulation regarding monthly weigh-in results. She states that she weighed 203 pounds on 6 January 2006 and 205 pounds on 9 February 2006 which she contended should have been interpreted as her first monthly weigh-in without making progress.  She further stated that she weighed 205 pounds on 8 March 2006, which she contended should have led to referral to health care personnel since she did not make satisfactory progress.  She also weighed 201 pounds on 10 April 2006, which was her third weigh-in.  She concluded her rebuttal with a summary of her service, awards and decorations, evaluations, and outstanding service and appealed to the separation authority to give her the chance to redeem herself.

17.  On 11 May 2006, the applicant’s intermediate commander thoroughly reviewed the applicant’s discharge packet and recommended approval of an honorable discharge and referral of the case to an administrative board.

18.  On 12 May 2006, the separation authority thoroughly reviewed the applicant’s discharge packet and directed the case be referred to an administrative board.  He further appointed a board of officers, under the provisions of chapter 2, Army Regulation 635-200; supplemented by the procedures of Army Regulation 15-6, to determine whether the applicant should be discharged prior to expiration of her term of service (ETS). 

19.  On 31 May 2006, by memorandum, the administrative board president notified the applicant of the time, date, location, composition, uniform, and purpose of the administrative board.  He further explained her right to consult with counsel and present witnesses.  On the same day, the applicant acknowledged receipt of the notification to appear before the administrative board and her right to present evidence or witnesses during the board.    

20.  The board convened at Fort Bragg, North Carolina, at 9:40 am on 15 June 2006, with the applicant and her counsel present during all open sessions of the board.  She was afforded the full opportunity to cross-examine adverse witnesses, to present evidence in her own behalf, and to testify in person or submit a statement.  The board adjourned at 1:50 pm on 15 June 2006.

21.  The board found that the allegation in the Notice of Administrative Separation in accordance with chapter 18 of Army Regulation 635-200 that the applicant failed to meet body fat standards was supported by a preponderance of the evidence and warranted separation, the applicant was not desirable for further retention in the Army.  The board unanimously recommended that the applicant be separated from the Army with an honorable discharge.  However, two of the board members recommended that her separation be suspended for 90 days to allow successful rehabilitation before separation.  The board president authenticated the report of proceedings as complete and accurate.  



22.  On 26 June 2006, the board’s president issued a separation board minority report, recommending separation without the 90-day suspension.  He remarked that enrollment on the weight control program starts on the date the Soldier is informed by the immediate commander that he/she is entered into the program.  The applicant’s weight fluctuated between 195 pounds and 207 pounds from June 2005 to November 2005.  From November 2005 to March 2006, the applicant gained more weight and only after notification of the impeding separation did she manage to lose 4 pounds.

23.  On 29 June 2006, the Chief, Administrative Law Division, Fort Bragg, North Carolina, reviewed the Report of Proceedings by a Board of Officers, concerning the applicant’s administrative separation under chapter 18 of Army Regulation 635-200, failure to meet body fat standards, and found the report to be legally sufficient.  The findings of the board were supported by a preponderance of the evidence with no material error that would affect the findings and recommendations; the actions taken during the proceedings complied with legal and procedural requirements of Army Regulation 635-200 and Army Regulation 15-6; and the recommendations of the board were consistent with the findings.  

24.  On 19 July 2006, the separation authority approved the recommendation for separation, directed immediate separation, waived the requirement for a rehabilitative transfer, and directed the applicant receive an Honorable Discharge Certificate.  Accordingly, she was discharged on 29 September 2006.  The DD Form 214 she was issued at the time shows she was honorably discharged in accordance with chapter 18 of Army Regulation 635-200, by reason of weight control failure.  She had completed 16 years, 1 month, and 15 days of creditable military service. 

25.  The applicant’s NCOERs show that she was consistently rated among the best with high potential for tough and challenging assignments, advanced schooling, and promotion.  Additionally, Part IV(c) (Physical Fitness and Military Bearing) of her NCOER for the period 200406 to 200507 shows that she did not meet weight standards, was enrolled in the weight control program, and was making progress. 

26.  The applicant submitted a copy of her temporary Physical Profile, dated 25 April 2002 which listed her medical condition as ankle pain and limited her running and jumping activities.  There is no indication in her records that shows she received a permanent profile and there is no indication that she underwent a medical evaluation board (MEB).

27.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.  Chapter 18 of this regulation covers separation for failure to meet body fat standards.  It states, in pertinent part, that Soldiers who fail to meet the body fat standards set forth in Army Regulation 600–9 are subject to involuntary separation when such condition is the sole basis for separation.  Separation proceedings may not be initiated under this chapter until the Soldier has been given a reasonable opportunity to meet the body fat standards, as reflected in counseling or personnel records.  Soldiers who have been diagnosed by health care personnel as having a medical condition that precludes them from participating in the Army body fat reduction program will not be separated under this chapter.  If there is no underlying medical condition and a Soldier enrolled in the Army Weight Control Program fails to make satisfactory progress in accordance with Army Regulation 600–9, separation proceedings will be considered.  Initiation of separation proceedings is required for Soldiers who fail to meet body fat standards during the 12–month period following removal from the program, provided no medical condition exists.  The notification procedure will be used for separation under this chapter.  The service of those separated per this chapter will be characterized as honorable, unless an uncharacterized description of service is required for Soldiers in entry-level status.

28.  Army Regulation 600-9 (dated 10 June 1987-in effect at the time) established policies and procedures for the implementation of the Army Weight Control Program (AWCP).  It stated in pertinent part that each Soldier (commissioned officer, warrant officer and enlisted) is responsible for meeting the standards prescribed in this regulation.  To assist Soldiers in meeting these responsibilities, screening tables were prescribed for use.  A five percent zone below the screening table weight ceiling is suggested as a help to Soldiers in targeting their personal weight at a level which will minimize the probability of exceeding the screening table weight ceiling as a matter of habit.  Soldiers should be coached to select their personal weight goal within or below the five percent zone and strive to maintain that weight through adjustment of life style and fitness routines.  If a Soldier consistently exceeds the personal weight goal, he or she should seek the assistance of master fitness trainers for advice in proper exercise and fitness; and health care personnel for a proper dietary program.  In other words, exceeding a properly selected goal should “trigger” the Soldier to use the substantial help available to alter the fitness and dietary behavior before confronting the finality of the screening table and initiation of official action if the body fat standards are exceeded. 

29.  Routine weigh-ins will be accomplished at the unit level.  Percent body fat measurements will be accomplished by company or similar level commanders (or their designee) in accordance with standards.  A medical evaluation will be accomplished by health care personnel when the Soldier has a medical limitation, or is pregnant, or when requested by the unit commander.  One is also required for soldiers being considered for separation due to failure to make satisfactory progress in a weight control program.  The Height/Weight Screening Table for male and female Soldiers is as follows (10 June 1987 standards):

Army Screening Table Weight
Male-Age Group
Female-Age Group
Height
17-20
21-27
28-39
>40
17-20
21-27
28-39
>40
60
132
136
139
141
116
120
123
127
61
136
140
144
146
120
124
127
131
62
141
144
148
150
125
129
132
137
63
145
149
153
155
129
133
137
141
64
150
154
158
160
133
137
141
145
65
165
159
163
165
137
141
145
149
66
170
163
168
170
141
146
150
154
30.  The maximum allowable percent body fat standards are as follows.  However, all personnel are encouraged to achieve the more stringent Department of Defense (DOD)-wide goal, which is 20 percent body fat for males and 26 percent body fat for females:

Maximum Allowable % Body Fat Standard
Age Group
Male
Female
17–20 years
20%
30%
21–27 years
22%
32%
28–39 years
24%
34%
40 & Older
26%
36%
31.  If health-care personnel discover no underlying or associated disease process as the cause of the condition and the individual is classified as overweight, these facts will be documented and the individual entered in a weight control program by the unit commander.  Suspension of favorable personnel actions will be initiated for personnel in a weight control program.  The required weight loss goal of 3 to 8 pounds per month is considered a safely attainable goal to enable Soldiers to lose excess body fat and meet the body fat standards. Weigh-ins will be made by unit personnel monthly to measure progress.  A body fat evaluation may also be done by unit personnel to assist in measuring progress.  As an exception, an individual who has not made satisfactory progress after any two consecutive monthly weigh-ins may be referred by the commander or supervisor to health care personnel for evaluation or reevaluation.  If health care personnel are unable to determine a medical reason for lack of weight loss—and if the individual is not in compliance with the body fat standards and still exceeds the screening table weight, the commander or supervisor will inform the individual that progress is unsatisfactory and he or she is subject to separation.  

32.  Army Regulation 15-6 establishes procedures for investigations and boards of officers not specifically authorized by any other directive.  The proceedings may be informal or formal.  Proceedings that involve a single investigating officer using informal procedures are designated investigations.  Proceedings that involve more than one investigating officer using formal or informal procedures or a single investigating officer using formal procedures are designated a board of officers.

33.  When the reason for separation requires the administrative board procedure, the commander will notify the Soldier in writing that his/her separation has been recommended per this regulation.  The commander will cite the specific allegations on which the proposed action is based; include the specific provisions of this regulation authorizing separation; and advise whether the proposed separation could result in discharge.  The Soldier will be advised of the least favorable characterization of service or description of separation he/she could receive and of the type of discharge and the characterization of service recommended by the initiating commander.  The separation authority is not bound by the recommendations of the initiating commander.  However, the separation authority will not authorize the issuance of a type of discharge or character of service less favorable than that recommended by the board.

34.  If a Soldier elects to present his/her case before an administrative separation board, the Soldier will be advised that willful failure to appear before the board of officers without good cause will constitute a waiver of rights to personal appearance before the board.  If a soldier waives his/her right to an administrative separation board, the separation authority may disapprove the waiver.  The separation authority will then refer the case to an administrative separation board, or direct retention on active duty.

35.  All members of a formal board of officers are voting members except as provided elsewhere.  The senior voting member present acts as president.  When a legal advisor has not been appointed, the president will rule on evidentiary and procedural matters.  A military respondent who does not retain a civilian counsel is entitled to be represented by a military counsel designated by the appointing authority.  Counsel will be sufficiently mature and experienced to be of genuine assistance to the respondent.  Unless specified by the directive under which the board is appointed, counsel is not required to be a lawyer.  No counsel for a respondent will be censured, reprimanded, admonished, coerced, or rated less favorably as a result of the lawful and ethical performance of duties or the zeal with which he or she represents the respondent.  Any question concerning the propriety of a counsel’s conduct in the performance of his or her duty will be referred to the servicing Judge Advocate.  Except for good cause shown in the report of proceedings, a respondent is entitled to be present, with counsel, at all open sessions of the board that deal with any matter concerning the respondent.  After all evidence has been received, the recorder and the respondent or counsel may make a final statement or argument.  The recorder may make the opening argument and, if argument is made on behalf of a respondent, the closing argument in rebuttal.  Upon approval or other action on the report of proceedings by the appointing authority, the respondent or counsel will be provided a copy of the report, including all exhibits and enclosures that pertain to the respondent.  Portions of the report, exhibits, and enclosures may be withheld from a respondent only as required by security classification or for other good cause determined by the appointing authority and explained to the respondent in writing.

36.  Proceedings under this regulation are administrative, not judicial.  Therefore, an investigating officer or board of officers is not bound by the rules of evidence for trials by courts–martial or for court proceedings generally.  Accordingly, subject only to some limitations, anything that in the minds of reasonable persons is relevant and material to an issue may be accepted as evidence.  For example, medical records, counseling statements, police reports, and other records may be considered regardless of whether the preparer of the record is available to give a statement or testify in person.  All evidence will be given such weight as circumstances warrant.  Administrative proceedings governed by this regulation generally are not subject to exclusionary or other evidentiary rules precluding the use of evidence.  Findings and recommendations of the investigating officer or board must be supported by evidence contained in the report.  Accordingly, witnesses will not make statements “off the record” to board members in formal proceedings.  Even in informal proceedings, such statements will not be considered for their substance, but only as help in finding additional evidence.

37.  A finding is a clear and concise statement of a fact that can be readily deduced from evidence in the record.  It is directly established by evidence in the record or is a conclusion of fact by the investigating officer or board. The nature and extent of recommendations required also depend on the purpose of the investigation or board and on the instructions of the appointing authority.  Each recommendation must be consistent with the findings.  Investigating officers and boards will make their recommendations according to their understanding of the rules, regulations, policies, and customs of the service, guided by their concept of fairness both to the Government and to Soldiers.  After all the evidence has been received (and arguments heard, if there is a respondent), the board members will consider it carefully in light of any instructions contained in the original appointment and any supplemental instructions.  These deliberations will (and if there is a respondent, must) be in closed session, that is, with only voting members present.  Nonvoting members of the board do not participate in the board’s deliberations but may be consulted.  The respondent and the respondent’s counsel, if any, will be afforded the opportunity to be present at such consultation.  The board may request the legal advisor, if any to assist in putting findings and recommendations in proper form after their substance has been adopted by the board.  A respondent and counsel are not entitled to be present during such assistance.

38.  A board composed of more than one voting member arrives at its findings and recommendations by voting.  All voting members present must vote.  After thoroughly considering and discussing all the evidence, the board will propose and vote on findings of fact.  The board will next propose and vote on recommendations.  If additional findings are necessary to support a proposed recommendation, the board will vote on such findings before voting on the related recommendation.  Unless another directive or an instruction by the appointing authority establishes a different requirement, a majority vote of the voting members present determines questions before the board.  In case of a tie vote, the president’s vote is the determination of the board.  Any member who does not agree with the findings or recommendations of the board may include a minority report in the report of proceedings, stating explicitly what part of the report he or she disagrees with and why.  The minority report may include its own findings and/or recommendations.

39.  A written report of proceedings will be submitted directly to the appointing authority or designee, unless the appointing authority or another directive provides otherwise.  If there are respondents, an additional copy for each respondent will be submitted to the appointing authority.  The appointing authority will notify the president of the board if further action, such as taking further evidence or making additional findings or recommendations, is required. Such additional proceedings will be conducted under the provisions of the original appointing memorandum, including any modifications, and will be separately authenticated.   

40.  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 (Standards of Physical Fitness), chapter 3.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

41.  Paragraph 3-2b provides for retirement or separation from active service.  This provision of regulation states that disability compensation is not an entitlement acquired by reason of service incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  The regulation also states that, when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit. 

42.  Paragraph 8-4 of Army Regulation 635-40 requires a commander to refer a Soldier to the responsible medical treatment facility when the unit commander believes that Soldier is unable to perform the duties of his or her office, grade, rank or rating because of physical disability.  This provision of regulation requires that the request will be in writing and will state the commander’s reasons for believing that the soldier is unable to perform his or her duties.

DISCUSSION AND CONCLUSIONS:

1.  Body-fat standards have been used by the Army since the 1980s to prevent obesity and to motivate good fitness habits.  These standards are used to determine initial qualification for enlistment and/or accession and also to determine whether or not a Soldier continues to meet required standards after joining the Army.  Military members are periodically weighed and measured throughout their career.  Those found to be over their body-fat limits are entered into a mandatory weight loss program.  Those who fail to maintain required body-fat standards are subject to administrative sanctions which can include reprimands, denial of promotions, administrative demotion in rank, and even administrative discharge.
2.  The weight table is a screening tool.  Just because a Soldier exceeds the weight on the table does not mean that Soldier is overweight.  Soldiers who exceed the weight indicated for their age/height on the table are measured for body-fat content using procedures in Army Regulation 600-9.  Soldiers who exceed the weight tables are measured for body-fat.  Those who exceed the Army body-fat standards are enrolled in the Army Weight Management Program (AWMP).  The specific objectives of the AWMP are to ensure combat readiness and good military appearance as well as long-term health.  Those in the weight management program must lose between 3 and 8 pounds per month until they meet body-fat standards. Those who fail to make satisfactory progress are subject to involuntary discharge.
3.  Administrative separation board evidence shows:

	a.  the applicant was properly identified by her chain of command as exceeding the Army weight and body fat standards for her gender and age group and was properly placed into a weight control program.  The applicant acknowledged that she exceeded the Army standard and had to lose weight and body fat.  However, she failed to meet the body fat standards set forth in Army Regulation 600–9, during the months of January 2006 and February 2006.  Accordingly, she was subject to involuntary separation. 

	b.  the applicant was provided with nutrition education and weight reduction counseling and that she was referred by her immediate commander to the health clinic to determine the cause of her overweight.  The military medical doctor determined that the cause of the over weight was not due to medical condition.  Her immediate commander subsequently requested the applicant undergo a physical evaluation.  The applicant was diagnosed by health care personnel as not having a medical condition that precluded participating in the Army body fat reduction program.  

	c.  the applicant participated in an administrative separation board.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the administrative separation board.  There were no questions raised or referred to the servicing Judge Advocate General concerning the propriety of her counsel’s conduct in the performance of his duty.  Counsel has no requirements to make an opening or a closing statement.

	d.  the findings were supported by a preponderance of the evidence with no material error that affected the findings and recommendations; the actions taken during the proceedings complied with legal and procedural requirements of Army Regulation 635-200 and Army Regulation 15-6; and the recommendations of the board were consistent with the findings.  





4.  With respect to the applicant’s medical condition:

	a.  the applicant was issued a temporary profile for ankle pain on 
25 March 2002 and there is no evidence available that indicates she was overweight as a result of this profile.

	b.  the available evidence shows the applicant was evaluated by military medical personnel on two separate occasions after her enrollment in the Army Weight Control Program and that in each instance the medical doctor stated that the applicant was not over weight due to a medical condition.

	c.  there is no evidence available to show the applicant was issued a permanent profile that contributed to her overweight condition or that a medical evaluation board was convened to evaluate her medical status.  The applicant failed to provide sufficient evidence to show that she was separated for medical reasons.

5.  In view of the foregoing evidence, the applicant is not entitled to relief.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__x___  __x__  __x___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



							RML
      ______________________
                CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.


ABCMR Record of Proceedings (cont)                                         AR20070013753



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