IN THE CASE OF:	  

		BOARD DATE:	  18 August 2011

		DOCKET NUMBER:  AR20100029317 


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 that his discharge for failure to meet body weight standards be changed to a medical discharge.

2.  The applicant states he was discharged from the Army for being overweight after being a good Soldier and passing all his Army Physical Fitness Tests.  He contends his unit ordered tests to see if there were medical reasons for his weight gain before being discharged.  The doctor stated the tests were good and advised him to continue his weight loss program.  He was doing physical training twice a day and starving himself, but he kept gaining weight.  He contends his active duty medical records show he was tested for a thyroid problem and the test showed abnormal results, but the unit ignored the test results.  He found out he has hypothyroidism and had they caught the problem and ordered full thyroid tests, he would have been given medication and continued his Army Career.  Instead, he went untreated and in 2004 he was rushed to the emergency room with a runaway heartbeat.  He was later told it was a thyroid storm caused by an untreated thyroid problem.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty), DA Form 5181-R (Screening Note of Acute Medical Care), Department of Veterans Affairs (VA) Progress Notes, hospital discharge order, and medical laboratory results.


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 enlisted service in the Army National Guard, the applicant enlisted in the Regular Army on 28 April 1988.

3.  He was enrolled in his unit's weight control program on 15 May 1990.  Records show his weight at the time of enrollment was 172.5 pounds and his body fat content was 22.92 percent.  His authorized maximum weight was 169 pounds and body fat content was 22 percent.

4.  On 22 May 1990, he was evaluated by medical personnel and found to be fit to participate in a weight control physical exercise program in accordance with Army Regulation 600-9 (The Army Weight Control Program).  It was determined at the time that his cause for being overweight was not due to a medical condition.

5.  On 26 July 1990, he was found to be in compliance with the provisions of Army Regulation 600-9 and was removed from the weight control program.

6.  On 2 October 1990, he was reenrolled in the weight control program due to exceeding the body fat standards.

7.  His participation in the weight control program continued for the next several months.  On 5 June 1991, his commander requested a medical evaluation based on initiation of separation action and based on the applicant's failure to make satisfactory progress in a weight control program.  The evaluating physician determined his cause for being overweight was not due to a medical condition.

8.  On 26 July 1991, he was notified of his proposed separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 5, for reenrollment in the weight control program.

9.  After consulting with counsel, he waived consideration of his case by a board of officers and representation by counsel and elected not to submit a statement in his own behalf.

10.  On 9 September 1991, the separation authority approved the separation action and directed the applicant be issued an honorable discharge.  Accordingly, he was discharged on 24 September 1991 under the provisions of Army Regulation 635-200, paragraph 5-15, for failure to meet body fat standards.

11.  He provides a DA Form 5181-R, dated 14 June 1991, that indicates there were no medical problems in his case and he was cleared for weight reduction programs.  He also provides medical laboratory results, dated 6 June 1991, that show his thyroid profile (with no indication of abnormal findings); a hospital discharge order, dated 16 August 2004, that shows a diagnosis of hypothyroidism; and VA Progress Notes, dated 16 February 2010, that show he was being tested for hypothyroidism.

12.  There is no evidence showing he was suffering an unfitting medical condition at the time of his separation from active duty that warranted processing through medical channels.

13.  Army Regulation 635-200, paragraph 5-15, in effect at the time, provided that Soldiers who failed to meet the body composition/weight control standards set forth in Army Regulation 600-9 may be separated per this paragraph when such conditions are the sole basis for separation.  The regulation provided that separation action may not be initiated under this paragraph until the Soldier had been given a reasonable opportunity to comply with and meet the body fat reduction goals prescribed for him or her by health care personnel.  The regulation also provided that if no medical condition existed and if the individual failed to make satisfactory progress in the program after a period of 6 months, then initiation of separation or imposition of a bar to reenlistment was required.

14.  Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his or her office, grade, rank, or rating.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge for failure to meet body fat and weight standards should be changed to a medical discharge has been carefully considered.

2.  He was discharged for not meeting the Army's body fat standards.  He was medically cleared on three occasions for participation in weight control programs and there is no evidence showing he suffered from hypothyroidism or any unfitting medical condition at the time that warranted his separation processing through medical channels.

3.  The evidence of record confirms that his administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

4.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20100029317



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ABCMR Record of Proceedings (cont)                                         AR20100029317



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