IN THE CASE OF:	  

		BOARD DATE:	  29 September 2011

		DOCKET NUMBER:  AR20110004432 


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 item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show "medical weight control failure" instead of "weight control failure."

2.  He states his weight control failure was due to his permanent physical profile for his feet.  He was only allowed to walk; he could not run or jump.

3.  He provides his service medical records.

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.  The applicant enlisted in the Regular Army on 16 November 1998.

3.  On 15 December 1999, he received counseling for exceeding the Army body fat standards prescribed in Army Regulation 600-9 (The Army Weight Control Program).  A DA Form 4856 (General Counseling Form) completed at that time shows he exceeded the weight standard by 16 pounds and the body fat standard by 3.27 percent.  He was notified he would be evaluated by medical personnel to determine if an underlying medical condition was causing him to exceed the allowable body fat percentage and that if no medical reason were found, he would be flagged until he met body fat standards.

4.  He was further informed that Army Regulation 600-9 states that if, after two consecutive weigh-ins, he had not shown satisfactory progress (defined as 3 to 8 pounds of weight loss), his commander could initiate separation action if there were no underlying medical reasons for exceeding standards.  His commander gave him 4 months to make satisfactory progress.

5.  The record shows when he weighed in on:

* 7 January 2000, his body fat percentage had decreased by .99 percent and he had gained 2 pounds
* 4 February 2000, his body fat percentage had increased by 1.19 percent and he had lost 0 pounds
* 7 March 2000, his body fat percentage had decreased by 1.19 percent and he had gained 3 pounds
* 27 March 2000, his body fat percentage had increased by .23 percent and he had gained 2 pounds

6.  On 6 April 2000, his commander informed him he was initiating action to separate him for failure to meet weight standards under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 18.

7.  On 7 April 2000, he acknowledged he had been advised by counsel of the basis for his contemplated separation and its effects.

8.  On 17 April 2000, the separation authority approved his separation, directed his transfer to the Individual Ready Reserve, and directed his service to be characterized as honorable.  On 26 May 2000, he was separated accordingly.  Item 28 of his DD Form 214 shows the entry "weight control failure."

9.  He provides medical records showing he repeatedly sought medical treatment for pain in his feet beginning in December 1998.  He was diagnosed with pes cavus (high arches).

10.  He provides a DA Form 3349 (Physical Profile) showing he was given a permanent physical profile on or about 3 December 1999 based on his diagnosis of pes cavus.  The DA Form 3349 shows he was deemed fit for most activities with the exception of running and jumping and shows he was not to be given assignments that involved marching.

11.  He provides a second DA Form 3349 showing his permanent physical profile was updated on 12 January 2000.  The updated profile shows his aerobic activities were to be limited to bicycling at his own pace and distance and swimming.  This form shows he had no assignment limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 18 states that Soldiers who fail to meet the body fat standards set forth in Army Regulation 600-9 are subject to separation when such condition is the sole basis for separation.  Separation action may not be initiated under this chapter until the Soldier has been given a reasonable opportunity to comply with and meet the body fat standards.  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 no medical condition exists, initiation of separation proceedings is required for Soldiers who do not make satisfactory progress in the program after a period of 6 months.

13.  Army Regulation 600-9 states healthcare personnel will evaluate an overweight Soldier when a Soldier has a medical limitation, when an evaluation is requested by a unit commander, or when separation is being considered for failure to make satisfactory progress in a weight control program.

14.  Army Regulation 40-501 (Standards of Medical Fitness) establishes policies and prescribes procedures for the physical disability evaluation of members of the Army for retention, retirement, or separation.  It states that a DA Form 3349 will not be used to excuse Soldiers from the provisions of Army Regulation 600-9.  The inability to perform all Army Physical Fitness Test events or the use of certain medications is not generally considered sufficient medical rationale to exempt a Soldier from the provisions Army Regulation 600-9.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for a change in his narrative reason for separation.

2.  His weight and body fat percentage exceeded Army standards.  He was given several months to make progress, but failed to do so.  As a result, he was separated from the Regular Army.  The record shows his separation met the requirements of law and regulation.

3.  The record shows he was diagnosed with pes cavus and based on this diagnosis he was given a physical profile.  The physical profiles he provides show he was able to participate in most fitness activities with the exception of running, jumping, and extended walking.  The physical fitness activities he was capable of, when combined with an appropriate diet, should have resulted in weight loss and/or a reduction in his body fat percentage.

4.  The record does not show and he has not provided evidence showing he had a medical condition that caused him to gain weight or prevented him from losing weight.  Therefore, he is not entitled to the requested 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 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)                                         AR20110004432



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ABCMR Record of Proceedings (cont)                                         AR20110004432



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