IN THE CASE OF:	  

		BOARD DATE:  15 March 2012

		DOCKET NUMBER:  AR20110019186 


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 discharge.

2.  The applicant states he injured his back during deployment but he was told to suck it up and drive on.  He was able to pass the push-up and sit-up events but not the 2-mile run.  The impact of running caused him terrible pain.  He had a profile that prevented him from performing his duties and he was in the process of getting a medical discharge but he was discharged for being overweight instead.  He adds that unlike his former unit at Fort Stewart, GA, his chain of command at Fort Irwin, CA, did not provide him with assistance; they were keen on getting him discharged for being overweight.  He was called names, harassed, and mistreated by unit members, and when his spouse found out he was being discharged she left him.  No one provided him help or even listened to him; he felt left out and abandoned by his chain of command.

3.  The applicant provides a Department of Veterans Affairs (VA) rating decision with allied medical documents, reports, and examinations.  

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 19 January 2006 and he held military occupational specialty 19K (M-1 Armor Crewmember).  He served in Kuwait/Iraq from 10 January 2007 to 26 March 2008.    

2.  He was assigned to C Troop, 1st Squadron, 11th Armored Cavalry Regiment, Fort Irwin, CA.  The highest rank/grade he attained was specialist/E-4. 
3.  On 13 July 2009, he participated in a monthly unit weigh-in and he weighed 278 pounds (lbs).  The maxim weight allowed for his age group (age 32) and height (67 inches) was 174 pounds (lbs).  His body fat percentage of 25 percent (%) also exceeded the maximum allowable percentage of 24%.

4.  On 31 July 2009, the applicant’s immediate commander ordered the applicant to be placed on the Army Weight Control Program (AWCP) and after counseling the applicant a goal of 3 to 8 pounds of weight loss per month was established to as 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 in a memorandum that he fully understood his responsibilities.  

5.  On 4 August 2009, he again participated in a monthly unit weigh-in and he weighed 280 lbs.  His body fat percentage of 34% also exceeded the maximum allowable percentage of 24%.

6.  On 10 August 2009, the applicant’s immediate commander directed the applicant to undergo a medical evaluation.

7.  On 15 August 2009, after undergoing a medical examination and after consultation with the applicant’s commander, the 11th Armored Cavalry Regiment’s Physician Assistant cleared the applicant to participate in a weight control and exercise program.

8.  On 10 September 2009, the applicant was provided with nutrition and weight reduction counseling in accordance with Army Regulation 600-9 (AWCP).

9.  Throughout his assignment to this unit, he participated in several monthly unit weigh-ins as indicated below.  The applicant’s weight fluctuated after the notification and although he made slight progress from September to October 2009 he continued to exceed both weight and body fat standards.   

Weigh-In Date
Height and Weight
Max Weight Allowed
Over/
Under
Gain or Loss
Actual Body Fat %
Max Body Fat %
% Over/ Under
13 Jul 09 
67”/278 lbs
174 lbs
104 lbs

25.00%
24.00%
1.00%
4 Aug 09
67”/280 lbs
174 lbs
106 lbs
+2 lbs
34.00%
24.00%
10.00%
8 Sep 09
67”/285 lbs
174 lbs
111 lbs
+5 lbs
32.00%
24.00%
8.00%
6 Oct 09
67”/285 lbs
174 lbs
111 lbs
0 lbs
33.00%
24.00%
9.00%
9 Nov 09
67”/279 lbs
174 lbs
105 lbs
-6 lbs
29.00%
24.00%
5.00%
14 Dec 09
67”/282 lbs
174 lbs
108 lbs
+3 lbs
28.00%
24.00%
4.00%
10.  The applicant’s records indicate that after each weigh-in the applicant’s first sergeant and/or commander conducted a counseling session with him 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.  

11.  On 19 January 2010, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him (the applicant) in accordance with chapter 18 of Army Regulation 635-200 for failing to meet body fat standards, enrollment in the AWCP, on 10 August 2009, and failing to make satisfactory progress.  The immediate commander further recommended an honorable discharge.  

12.  On 19 January 2010, the applicant acknowledged receipt of the notification of separation memorandum.  He consulted counsel concerning the basis of the contemplated action to separate him for failing to meet body fat standards and its effects and of the rights available to him and the effect of any action taken by him in waiving any of his rights.  He elected not to submit a statement in his own behalf.  He further acknowledged that he could encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.

13.  On 19 January 2010, the applicant’s immediate commander initiated separation action against the applicant in accordance with chapter 18 of Army Regulation 635-200 for failing to meet body fat standards, enrollment in the AWCP on 10 August 2009, and failing to make satisfactory progress.  The immediate commander stated that the applicant possessed no potential for useful service under conditions of full mobilization and therefore should be discharged.  He further recommended an honorable discharge.

14.  On 21 January 2010, the applicant’s intermediate commander thoroughly reviewed the applicant’s discharge packet and recommended approval of an honorable discharge.  

15.  On 25 January 2010, the separation authority approved the applicant’s separation action under the provisions of chapter 18 of Army Regulation 635-200 and directed the applicant receive an Honorable Discharge Certificate.  Accordingly, the applicant was discharged on 3 March 2010. 

16.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he was honorably discharged in accordance with chapter 18 of Army Regulation 635-200, by reason of weight control failure.  He had completed 4 years, 1 month, and 15 days of creditable military service. 

17.  The applicant submitted a copy of his VA rating decision which shows he was awarded service-connected disability compensation at the rate of 30% for an intervertebral disc syndrome with degenerative arthritis; 30% for a depressive disorder; 10% for sciatica; and 0% for erectile dysfunction.

18.  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 AWCP 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.

19.  Army Regulation 600-9 (dated 27 November 2006) established policies and procedures for the implementation of the AWCP. 

	a.  Paragraph 2-13 states 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. 

	b.  Paragraph 3-2 states that 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.  A medical evaluation 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:

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
65
155
159
163
165
150
152
154
156
66
160
163
168
170
155
156
158
161
67
165
169
174
176
159
161
163
166
68
170
174
179
181
164
166
168
171
69
175
179
184
186
169
171
173
176
	c.  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 18% body fat for males and 26% 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%

	d.  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 will be entered in a weight control program by the unit commander.  Suspension of favorable personnel action 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.  

20.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation)  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 Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  

	a.  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. 

	b.  Paragraph 8-4 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.

21.  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 physical evaluation board rates all disabilities using the VA Schedule for Rating Disabilities.  Ratings can range from 0 to 100 percent, rising in increments of 10 percent.

22.  Title 10, U.S. Code (USC), 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, USC, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent.

23.  Title 38, USC, sections 1110 and 1131, permit 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 an 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.  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.  Body-fat standards have been used by the Army since the 1980s to prevent obesity and 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 AWCP.  The specific objectives of the program 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.  The applicant in this case was properly identified by his chain of command as exceeding the Army weight and body fat standards for his gender and age group and was properly placed into a weight control program.  The applicant acknowledged that he understood he exceeded the Army standard and had to lose weight and body fat.  However, he failed to meet the body fat standards set forth in Army Regulation 600–9.  Accordingly, he was subject to involuntary separation. 

4.  The applicant was provided nutrition education and weight reduction counseling and he was referred by his immediate commander to the health clinic to determine the cause of his weight problem.  The military medical doctor determined that he was not over weight due to a medical condition.  His 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.  

5.  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 by the applicant regarding a medical injury or an illness.  There is no evidence he suffered an injury or an illness that rendered him unable to perform the duties required of his grade or military specialty or warranted his entry into the Physical Disability Evaluation System (PDES).  

6.  There is no evidence available to show the applicant was issued a permanent profile that contributed to his overweight condition.  The applicant failed to provide sufficient evidence to show that he should have been separated for medical reasons.

7.  He was awarded service-connected disability compensation by the VA after discharge.  However, an award of a rating by another agency does not establish error by the Army.  Operating under different laws and their 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 of a medical condition related to service (service connected) and affects the individual's civilian employability.  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.  There is no evidence to show the applicant had such disability at the time of his discharge from the Army.

8.  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.



      _______ _   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)                                         AR20110019186



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ABCMR Record of Proceedings (cont)                                         AR20110019186



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