IN THE CASE OF:	  

		BOARD DATE:	  30 June 2011

		DOCKET NUMBER:  AR20100029405 


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 a medical retirement.

2.  The applicant states:

   a.  he was separated in March 2000 due to weight control failure.
   
   b.  he had sleep apnea while on active duty and he was not adequately evaluated by medical personnel prior to separation.

3.  In a letter, dated 5 December 2010, he points out:

	a.  paragraph 3-2d of Army Regulation 600-9 (Army Weight Control Program) states a medical evaluation is required for Soldiers being considered for separation because of a failure to make satisfactory progress in the Army Weight Control Program.

	b.  paragraph 3-2d(1) states a medical professional will conduct a thorough medical evaluation to rule out any underlying medical condition that may be cause for significant weight gain.  If an underlying condition cannot be controlled with medication or other medical treatment, the medical professional will refer the Soldier to a Medical Evaluation Board (MEB).


	c.  paragraph 3-2d(4) states if an individual's weight condition, as diagnosed by medical authorities, results from an underlying or associated disease process, health care personnel will take one of the following actions:

       (1)  prescribe treatment to alleviate the condition and return the Soldier to the unit.

       (2) provide personalized nutritional and exercise counseling based on medical diagnosis.
   
       (3)  determine whether an individual's condition is medically disqualifying for continued service.  If the Soldier does not meet medical retention standards of Army Regulation 40-501, chapter 3, the Soldier will be referred to an MEB/Physical Evaluation Board (PEB).  

	d.  paragraph 1-32a of Army Regulation 635-200 (Personnel Separations) states commanders will ensure that Soldiers initiated for separation under this regulation who are required to obtain a physical examination per Title 10 U.S. Code, section 1145 obtain such.  Physical examinations and mental evaluations will comply with Army Regulation 40-501 and other policy guidance issued by the Surgeon General and U.S. Army Medical Command. 

4.  The applicant provides:

   a.  Army medical records.
   
   b.  DD Form 214 (Certificate of Release or Discharge from Active Duty). 

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.  He enlisted in the Regular Army on 21 March 1997.  He completed his training and was awarded military occupational specialty 91B (medical specialist).

3.  He underwent an "annual" physical examination on 30 September 1999.  In item 11 (Have you ever had or have you now) of his Standard Form 93 (Report of Medical History), dated 30 September 1999, he reported "No" to frequent trouble sleeping.

4.  The facts and circumstances surrounding his release from active duty are not available.  However, his DD Form 214 shows that on 3 March 2000 he was honorably released under the provisions of Army Regulation 635-200, chapter 18, for weight control failure.  He had completed a total of 2 years, 11 months, and 13 days of creditable active service.

5.  There is no evidence of record which shows he was diagnosed with sleep apnea or any mental or medical condition prior to his release from active duty on 3 March 2000.

6.  He provided a Department of Veterans Affairs Rating Decision, dated 4 April 2008, which shows service connection for sleep apnea was granted (50 percent).  This decision states "current sleep apnea most likely began in service." 

7.  Interim change 2 to Army Regulation 635-200 adds chapter 18 (Failure to Meet Body Fat Standards) to this regulation.  Chapter 18 provides that Soldiers who fail to meet the body fat standards set forth in Army Regulation 600-9 shall be separated under this provision when it is the sole basis for separation.  The regulation provides that the Soldier must be given a reasonable opportunity to comply with and meet body fat standards.  The regulation also provides that if no medical condition exists and if the individual fails to make satisfactory progress in the program after a period of 6 months, then initiation of separation or imposition of a bar to reenlistment is required.  The service of Soldiers separated under this chapter will be characterized as honorable.

8.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states that the mere presence of impairment does not, in and of itself, justify a finding of unfitness because of physical disability.

DISCUSSION AND CONCLUSIONS:

1.  He contends he had sleep apnea while in the Army.  However, there is no evidence of record and he provided no evidence which shows he was diagnosed with sleep apnea prior to separation.  In addition, on his physical examination, less than 6 months prior to separation, he denied that he had problems sleeping.  

2.  The available evidence of shows he was honorably discharged due to weight control failure on 3 March 2000.  

3.  In the absence of evidence to the contrary, it must be presumed his separation action was administratively correct and in conformance with applicable regulations.  

4.  There is no evidence to show he could not perform his duties while on active duty.  Therefore, there is insufficient evidence to show a medical retirement was warranted.

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.



      _______ _   _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)                                         AR20100029405



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ABCMR Record of Proceedings (cont)                                         AR20100029405



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