IN THE CASE OF:	  

		BOARD DATE:	  29 March 2011

		DOCKET NUMBER:  AR20100024780 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was medically retired with the appropriate separation and reentry eligibility (RE) codes instead of being honorably discharged for failure to meet body fat standards.

2.  The applicant states he believes the record reflects an unfair, unjust, and completely false discharge.  The documents accompanying this application prove his chain of command showed complete lack of objectivity and utter disregard for Army regulations.  His "commander ignored and hid [his] medical and psychological conditions from the administrative separation board, and the derivative effects of the myriad of Army physicians and psychiatrists prescribed medications that he had to take before, during, and after this unjustifiable discharge replete with a total lack of care and consideration for established guidance for proper processing of service members with combat-related illnesses and profiles."

3.  The applicant provides:

* DD Form 214
* medical records related to his right knee injury, toe fracture, diabetes, tendonitis, hypertension, and low back pain
* Department of Veterans Affairs (VA) rating decision
* administrative separation board proceedings
* separation memorandum
* discharge orders

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  Having prior service, the applicant's records show he reenlisted in the Regular Army on 30 April 1983 and held military occupational specialty 11B (Infantryman).  He served through multiple reenlistment or extensions and attained the rank of staff sergeant/E-6.

3.  His records show he served in Vietnam from June 1970 to December 1971 and in Germany from December 1977 to December 1980 and October 1986 to October 1989.  At the time of separation, he was assigned to Headquarters and Headquarters Company, U.S. Army Garrison, Fort Lewis, WA.

4.  On 7 June 1990, he underwent a unit weigh-in and he was determined not to be in compliance with weight control standards of Army Regulation 600-9 (The Army Weight Control Program (AWCP)).  He exceeded his maximum allowable weight by 43 pounds.  He also measured at 30 percent of body fat while his maximum authorized body fat was 24 percent.

5.  Subsequent to this weigh-in, the applicant was examined and found to be fit for participation in the AWCP.  A medical official determined his overweight was not due to a medical condition.  Accordingly, he was enrolled on the AWCP and he was enrolled in a weight reduction program.

6.  On 20 June 1990, his immediate commander referred him to health care personnel for nutrition education and weight control counseling.  He was seen at the nutrition clinic and he was provided nutrition and weight reduction counseling in accordance with Army Regulation 600-9.  He was also recommended for follow-up counseling at unit level.  A goal of 3 to 8 pounds of weight loss per month was established.

7.  During the months of June through December 1990, he underwent monthly weigh-ins at the unit, but in each weigh-in he was again determined to have exceeded body fat standards and the goal of 3 to 8 pounds of weight loss per month for satisfactory progress was not met.  In each case, he acknowledged he understood his responsibilities to achieve the body fat standards.

8.  On 11 March 1991, after having determined the applicant failed to achieve the established goals or comply with weight standards, his immediate commander notified him of his intent to initiate separation action against him in accordance with chapter 5 of Army Regulation 635-200 (Personnel Separations) by reason of failure to meet the Army weight/body fat standards of Army Regulation 600-9.

9.  On 11 March 1991, he acknowledged receipt of the separation memorandum. 
He consulted with legal counsel and was advised of the basis for the contemplated separation action and its effect, of the rights available to him and the effect of any action taken by him in waiving his rights, and the type of discharge and its effect on further enlistment or reenlistment.  He requested consideration of his case by an administrative separation board and a personal appearance before a separation board.

10.  On 15 March 1991, his immediate commander initiated separation action against him in accordance with paragraph 5-15 of Army Regulation 635-200 for failure to meet the Army weight/body fat standards of Army Regulation 600-9.  His intermediate commander concurred and recommended approval on 10 April 1991.

11.  On 14 June 1991, an administrative separation board convened at Fort Lewis, WA, with the applicant and his counsel present.  The board found the applicant was given a reasonable opportunity to comply with and meet the weight/body fat reduction goals prescribed for him by health care personnel, but he failed to do so.  He had not been diagnosed by health care personnel as having a medical condition which precluded him from participating in the AWCP.  The board recommended his separation under the provisions of paragraph 5-15 of Army Regulation 635-200 by reason of failure to meet Army body fat composition/weight control standards.

12.  On 5 August 1991, a military attorney reviewed the separation proceedings and found them legally sufficient.

13.  On 23 August 1991 after consideration of the administrative separation board proceedings, the separation authority directed that the applicant be separated under the provisions of paragraph 5-15 of Army Regulation 635-200 with an Honorable Discharge Certificate.  On 26 September 1991, the applicant was accordingly discharged.

14.  The DD Form 214 he was issued shows he was discharged with an honorable character of service under the provisions of paragraph 5-15 of Army Regulation 635-200 by reason of failure to meet Army body composition/weight control standards.  This form shows he completed 17 years and 24 days of creditable active military service.  This form also shows in:

* item 26 (Separation Code) – "JFV"
* item 27 (Reentry Code) – "3"
* item 28 (Narrative Reason for Separation) – "Failure to meet Army body composition/weight control standards"

15.  He submitted the following documents:

	a.  A DA Form 3349 (Physical Profile), dated 16 November 1989, shows he was issued a temporary physical profile for a big toe injury and he was assigned temporary physical limitations for 30 days.

	b.  A DA Form 5181-R, dated 16 November 1989, shows he complained of hypertension.

	c.  DA Forms 5181-R (Screening Note of Acute Medical Care), dated 16 November 1989, 21 December 1989, 26 December 1989, 16 January 1990, and 28 January 1990, show he complained of pain and tenderness in his big toe subsequent to an injury.

	d.  A DA Form 5181-R, dated 27 June 1990, shows he complained of lower back pain.

	e.  A Standard Form 600 (Chronological Record of Medical Care), dated February and March 1991, shows he was issued a 2-week temporary physical profile for neuropathy related to his wrist pain.

	f.  A Standard Form 513, dated 29 March 1991, shows he complained of left ankle pain caused by what appears to be running.  He was evaluated and prescribed medications.

	g.  A DA Form 3349, dated 1 May 1991, and various other medical records show he was given a temporary physical profile for chronic tendonitis of the right arm and right hand.

	h.  A Standard Form 513 (Consultation Sheet), dated 11 July 1991, shows he experienced pain in his right knee.  Magnetic resonance imaging suggested a tear and degenerative changes to his posterior cruciate ligament.  He was prescribed medication and asked to follow up.

	i.  VA progress notes, dated 29 August 2002, show he was seen at the VA podiatry clinic.

	j.  A printout of laboratory work shows a high level of glucose and other minerals.

	k.  A VA rating decision, dated 29 July 2009, shows he was awarded service-connected disability compensation at a rate of 100 percent for various ailments including type II diabetes mellitus, neurological bladder, chronic itchy and watery eyes, fecal leakage, vascular disease of the right leg, fractured left toe, arthritis of the right knee, an acne scar, and other ailments.

16.  There is no indication in the applicant's records he was diagnosed with an illness or injury that rendered him unable to perform the duties required of his military occupational specialty or grade and/or warranted his entry into the Army Physical Disability Evaluation System (PDES).

17.  There is no indication in the applicant's records he was issued a permanent physical profile or that he underwent a medical evaluation with subsequent referral to a medical evaluation board (MEB).

18.  Army Regulation 600-9 states commanders and supervisors will implement the AWCP.  Overweight is defined as when a Soldier's percent of body fat exceeds the standard specified in the regulation.  Body fat composition will be determined for personnel whose body weight exceeds the screening table weight.  A medical evaluation will be accomplished when requested by the unit commander or when the Soldier is being considered for separation due to failure to make satisfactory progress in a weight control program.  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.

19.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.  Paragraph 5-15, in effect at the time, provided the policy for separating members who failed to meet the Army body composition/weight control standards if this condition was the only reason for separation and there was no underlying medical condition which precluded them from participating in the AWCP.  Members separated under this provision of the regulation received an honorable discharge.

20.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The regulation in effect at the time of the applicant's separation stipulated that the SPD code of "JFV" was the appropriate code to assign to Soldiers separated under the provisions of chapter 5, Army Regulation 635-200, by reason of failure to meet Army composition and weight control standards.

21.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES 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 or her office, grade, rank, or rating.  It provides for MEB's, 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 chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board (PEB).

22.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VA Schedule for Rating Disabilities.

23.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent.

24.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish error or injustice in the Army rating.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, these two government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his DD Form 214 should be corrected to show he was medically retired with the appropriate separation and RE codes instead of being honorably discharged for failure to meet body fat standards.

2.  The evidence of record shows the applicant underwent a unit weigh-in and he exceeded both the Army weight standards and the Army body fat standards.  Subsequent to this weigh-in, the applicant was examined and found to be fit for participation in the AWCP.  A medical official determined his overweight was not due to a medical condition.  Accordingly, he was enrolled on the AWCP and he was enrolled in a weight reduction program.

3.  A goal was established for the applicant to lose a predetermined number of pounds as a measure of progress that would ensure his compliance with Army standards.  He was given a reasonable opportunity to comply with and meet the weight/body fat reduction goals prescribed for him by health care personnel, but he failed to do so.  He had not been diagnosed by health care personnel as having a medical condition which precluded him from participating in the AWCP.

4.  Accordingly, his immediate commander initiated separation action against him.  He underwent an administrative separation board and had an opportunity to present all his issues.  The separation board recommended his discharge and the separation authority ordered it.  All requirements of law and regulations were followed and his rights were fully protected throughout the separation process.

5.  Contrary to his contention, the evidence available to the Board indicates that both the applicant's unit and medical personnel were actively involved in his participation in the AWCP.  There is no evidence of any error or injustice or that the applicant was treated unfairly.  There is no evidence of record and the applicant has not provided any evidence that his weight condition was medically related or that there was any medical condition which prevented him from losing weight in order to comply with the Army's standards.


6.  His narrative reason for separation and corresponding SPD and RE codes were assigned based on his discharge under the provisions of paragraph 5-15 of Army Regulation 635-200 by reason of failure to meet Army body fat composition/weight control standards.  Absent the failure to meet weight standards, there was no fundamental reason to process the applicant for discharge.  The underlying reason for his release from active duty was his failure to meet weight standards.  The only valid narrative reason for separation permitted under that paragraph is "failure to meet Army body fat composition/weight control standards" and the corresponding SPD and RE codes are "JFV" and "3" which are properly shown on his DD Form 214.

7.  With respect to the medical issues, the purpose of the PDES is to maintain an effective and fit military organization with maximum use of available manpower, provide benefits for eligible Soldiers whose military service is terminated because of a service-connected disability, and provide prompt disability processing while ensuring that the rights and interests of the Army and the Soldier are protected.

8.  As such, a Soldier who suffers an injury or an illness while on active duty is retained in the service until he or she has attained maximum hospital benefits and completion of a disability evaluation if otherwise eligible for referral into the disability system.  Medical officials are responsible for counseling Soldiers concerning their rights and privileges at each step in the disability evaluation, beginning with the decision of the treating physician to refer the Soldier to an MEB and until final disposition is accomplished.

9.  In this case, the evidence of record shows the applicant suffered from various ailments and/or he was frequently seen at medical treatment facilities (MTF) for routine medical complaints.  He was also issued temporary physical profiles that temporarily restricted his physical activities.  Yet there is no evidence in the available records that shows the applicant was referred by the MTF to an MEB.  The MTF commander could have done so had he believed the applicant was physically unfit to perform his duties.  Nowhere in his records does it show he had a medical condition that rendered him physically unfit and warranted his entry into the PDES.

10.  There is no evidence in the applicant's records and he did not provide any evidence that shows any of the alleged injuries or illnesses were diagnosed during a medical examination and were determined not to meet the medical retention standards of Army Regulation 40-501.  Accordingly, an MEB never 

convened to document his medical status and duty limitations with possible 
referral to a PEB.  Without an MEB, there would have been no basis for referring him to a PEB.  Without a PEB, the applicant could not have been issued a medical discharge or separated/retired for physical disability.

11.  He believes he should have been medically retired because the VA granted him service-connected disability compensation.  However, an award of a rating by another agency does not establish error by the Army.  Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA may award ratings because a medical condition is related to service (service connected) and affects the individual's civilian employability.  For example, it is noted the VA awarded the applicant a 60-percent disability rating for neurological bladder.  However, there is no evidence to show the applicant was even diagnosed with such condition during his military service or that this condition rendered the applicant unable to perform his duties.

12.  The PDES provides that the mere presence of a medical impairment does not, in and of itself, justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may be reasonably expected to perform because of his or her office, grade, rank, or rating.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.

13.  In view of the circumstances in this case, there is insufficient evidence to grant the requested relief.  The applicant has not shown error, injustice, or inequity for the relief he requests.

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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _________X_____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20100024780



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ABCMR Record of Proceedings (cont)                                         AR20100024780



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