IN THE CASE OF:	  

		BOARD DATE:	  18 April 2012

		DOCKET NUMBER:  AR20110020630 


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:

* revocation of his 13 December 2010 discharge from the Regular Army
* reinstatement on active duty for the purpose of a medical evaluation board to determine if he should be medically separated

2.  The applicant states:

* his discharge under chapter 18 of Army Regulation 635-200 (Personnel Separation) due to overweight was improper
* he was unjustly discharged from the Army for failing to meet the body fat standards of Regulation 600-9 (Army Weight Control Program (AWCP))
* his chain of command failed to follow the provisions of the regulation prior to separating him
* he should have been medically evaluated to determine if he should have been medically separated due to an injury he sustained while on active duty

3.  The applicant provides:

* his separation packet
* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a letter from his defense counsel to the separation authority
* 
multiple DA Forms 3349 (Physical Profile)
* a medical statement from his civilian podiatrist

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 16 February 2006 and he held military occupational specialty 13M (Multiple Launch Rocket System/High-Mobility Artillery Rocket System Crewmember).  He served in Africa from 15 March 2008 to 9 June 2009 during which he executed a reenlistment in the Army on 4 November 2008.

2.  He was assigned to Battery A, 2nd Battalion, 18th Field Artillery Regiment, Fort Sill, OK.  The highest rank/grade he attained was specialist/E-4.

3.  On 13 October 2009, he participated in a monthly unit weigh-in and he weighed 222 pounds.  The maximum weight allowed for his age group (age 21) and height (68 inches) was 174 pounds.  He exceeded the weight standards by 48 pounds.  His body fat percentage of 31 percent also exceeded the maximum allowable percentage of 22 percent by 9 percent.

4.  On 20 October 2009, a series of events took place:

	a.  The applicant's immediate commander notified him that he exceeded the body fat standards and as such ordered the applicant to be placed in the AWCP. 
After counseling the applicant, a goal of 3 to 8 pounds of weight loss per month was established 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.

	b.  The applicant acknowledged in a memorandum that he fully understood his responsibilities to achieve the body fat standards and to have his weight recorded periodically during unit training.

	c.  The applicant's immediate commander requested that health care personnel provide the applicant with nutrition education and weight-reduction counseling as required by Army Regulation 600-9.

	d.  The Chief, Nutrition Outpatient Clinic, notified the applicant's commander that the applicant was provided with nutrition and weight-reduction counseling.

	e.  The applicant's immediate commander requested that medical personnel conduct a medical evaluation of the applicant.

	f.  A military medical official notified the applicant's commander that based on an examination and evaluation of the applicant, he was medically cleared to participate in a weight control and exercise program.

5.  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 in November and December 2009, he continued to exceed both weight and body fat standards.

Weigh-In Date
Height and Weight
Maximum Weight Allowed
Over/
Under
Gain or Loss
Actual Body Fat %
Maximum Body Fat %
% Over/
Under
13 Oct 09
68"/222 lbs
174 lbs
48 lbs

31.00%
22.00%
9.00%
19 Nov 09
68"/219 lbs
174 lbs
45 lbs
-3 lbs
29.00%
22.00%
7.00%
15 Dec 09
68"/217 lbs
174 lbs
43 lbs
-2 lbs
31.00%
22.00%
9.00%
XX Jan 10
None Taken






17 Feb 10
68"/222 lbs
174 lbs
48 lbs

32.00%
22.00%
10.00%
15 Mar 10 
68"/226 lbs
174 lbs
52 lbs
+4 lbs
31.00%
22.00%
9.00%
17 Apr 10
68"/219 lbs
174 lbs
45 lbs
-7 lbs
32.00%
22.00%
10.00%
19 May 10
68"/220 lbs
174 lbs
46 lbs
+1 lbs
29.00%
22.00%
7.00%
22 Jun 10
68"/211 lbs
174 lbs
37 lbs
-9 lbs
28.00%
22.00%
6.00%
30 July 10
68"/216 lbs
174 lbs
42 lbs
+5 lbs
29.00%
22.00%
7.00%
26 Aug 10
68"/218 lbs
174 lbs
44 lbs
+2 lbs
29.00%
22.00%
7.00%
13 Sep 10
68"/216 lbs
174 lbs
42 lbs
-2 lbs
27.00%
22.00%
5.00%
6.  The applicant's records indicate his first sergeant and/or commander conducted a counseling session with him after each weigh-in listing the applicant's current weight and body fat compared to the previous month's on each counseling form and the applicant was provided a clear and safe attainable weight loss goal.

7.  On 26 March 2010, the applicant's immediate commander initiated a Bar to Reenlistment Certificate against the applicant.

8.  On 26 July 2010, he underwent a separation physical at Reynolds Army Community Hospital, Fort Sill, OK.  The military doctor found him medically qualified for separation.

9.  On 27 September 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 and enrollment in the AWCP and failing to make satisfactory progress.  The immediate commander further recommended an honorable discharge.
10.  On 27 September 2010, the applicant acknowledged receipt of the notification of separation memorandum.  On 27 October 2010, 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 he could encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him.  He indicated that a statement would be provided by his defense counsel.

11.  On 28 October 2010, his defense counsel submitted a memorandum to the separation authority wherein he contended:

* the administrative separation was legally insufficient
the applicant suffered a foot injury in Korea in 2006 that led to surgical insertion of a metal rod and screws; he had additional surgery at Fort Sill, OK, in 2007 to remove the screws
* he deployed to Iraq for 15 months from 2008 to 2009 during which he continued to suffer problems with his foot which contributed to his Army Physical Fitness Test failure and weight problems
* there were many errors in the separation packet where the weight loss between 2 months was incorrectly stated and in 1 month (January 2010) no weigh-in was conducted, the frequency of the weigh-in was not consistent, and the taping process was improperly conducted
* meanwhile, the applicant continued to experience foot problems and he was placed on temporary physical profiles in May and June 2010 and then on a permanent physical profile in July 2010 related to his foot injury
* the applicant had significant medical problems that prevented him from participating in the physical training program
* even with a medical statement from a civilian podiatrist who explained the entire nature of the applicant's injury, the chain of command elected to do nothing 
* the separation packet reflects an uncaring and an inflexible attitude by the chain of command despite the applicant's clear injury
* the regulation requires a medical examination for a Soldier who is being considered for separation because of failure to make progress in the weight control program to rule out any underlying medical reasons
* although the immediate commander sent the applicant for a medical evaluation upon enrollment in the weight control program in October 2009, he failed to send him for further evaluation despite knowledge of his foot injury
* in any case, the medical examination that was conducted was due to a previous APFT failure chapter packet, not for failing to make progress in the weight control program
* the immediate commander had all the facts and knowledge about the foot injury, including the medical statement from the civilian podiatrist, yet he did not send the applicant for further evaluation
* the separation action would not have happened if the commander sent the applicant to an additional medical examination to determine if his foot injury impacted his ability to participate in the weight control program
* the commander wanted an overweight Soldier out of his company with no rehabilitative transfer, no further medical examination, and no consult with medical personnel

12.  On 1 November 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 and enrollment in the AWCP and failing to make satisfactory progress.  The immediate commander stated the applicant possessed no potential for useful service under conditions of full mobilization and therefore should be discharged.  He further recommended an honorable discharge.

13.  On 1 November 2010, the applicant's intermediate commander thoroughly reviewed the applicant's discharge packet and recommended approval of an honorable discharge.

14.  On 4 November 2010 after reviewing the separation packet and the statement submitted by the applicant's counsel, the separation authority approved the applicant's separation action under the provisions of chapter 18 of Army Regulation 635-200 and directed he receive an Honorable Discharge Certificate.  Accordingly, the applicant was discharged on 13 December 2010.

15.  The DD Form 214 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 completed 4 years, 9 months, and 28 days of creditable military service.

16.  The applicant provides the following documents in support of his application.

	a.  A DA Form 3349, dated 17 July 2007, for painful screws in his right foot shows he was pending surgery on 27 July 2007 and a temporary functional limitation of no ruck marching.

	b.  A DA Form 3349, dated 19 July 2007, for projected removal of screws from his foot shows he was assigned temporary functional limitations of no running, jumping, or marching and instructed him to wear a post-operative shoe.

	c.  A memorandum, dated 27 July 2007, authorizes him convalescent leave from 27 July 2007 to 27 August 2007.

	d.  A DA Form 3349, dated 10 September 2007, for screw irritation shows he was pending surgery for screw removal on 26 October 2007.

	e.  A DA Form 3349, dated 11 October 2007, for post-operative foot screws shows he was assigned a temporary functional limitation of wearing an appropriate shoe.

	f.  Medical Record – Patient Release/Discharge Instructions, dated 26 October 2007, relates to surgical removal of the screws.

	g.  A memorandum, dated 26 October 2007, authorized him convalescent leave from 26 October 2007 to 26 November 2007 subsequent to removing the screws from his foot.

	h.  A DA Form 689 (Individual Sick Slip), dated 17 May 2010, shows he was seen for foot pain and was counseled on stretching and range-of-motion exercises to improve foot stability.

	i.  A DA Form 3349, dated 25 May 2010, for tendinitis shows he was assigned temporary functional limitations of no marching, jumping, extended walking, or prolonged standing.

	j.  A DA Form 3349, dated 25 June 2010, citing no specific medical condition shows he was assigned a temporary functional limitation of no field duty and was instructed to keep his foot dry.

	k.  A DA Form 3349, dated 20 July 2010, for right foot pain (fracture with dislocation) shows he was assigned no temporary functional limitations.

	l.  A statement from a civilian podiatrist at Reynolds Army Community Hospital, dated 10 September 2010, states the applicant injured his foot in November 2006.  The injury damaged the bones and caused dislocation of joints in the middle portion of the foot.  He underwent surgery to realign the bones and hold them with screws.  Due to several fractures present, the bones were not able to completely align to normal and there was some angulation to the bones as they healed.  He later underwent surgery to remove the screws.  The foot remained at risk for arthritis and stress injury due to residual deformity.  He was placed on a no-running profile to reduce the stress and help maintain the alignment.  Although he was responding well, an injury such as his would take a long period of time to heal.

17.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.  Chapter 18 covers separation for failure to meet body fat standards.  It states 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.

18.  Army Regulation 600-9 establishes 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 5-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 5-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-wide goal, which is 18 percent body fat for males and 26 percent 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.

19.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (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 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 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 who 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 requires that the request be in writing and will state the commander's reasons for believing the Soldier is unable to perform his or her duties.

20.  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 Department of Veterans Affairs Schedule for Rating Disabilities.  Ratings can range from 0 to 100 percent, rising in increments of 10 percent.

21.  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 at less than 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  Body-fat standards have been used by the Army since the 1980's 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 an 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 in a weight control program.  He acknowledged 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 he was not overweight 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 process.  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 in the PDES.

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

7.  The applicant's foot injury is not in question.  However, the injured foot was never diagnosed as disabling or contributing to his overweight.  Counsel's argument that if the commander had sent the applicant for a medical evaluation, that medical personnel could have determined if the foot injury contributed to the weight issue is speculative and not supported by evidence.

8.  In fact, despite his foot injury, he was able to serve in Africa and executed a reenlistment in the Regular Army.  He continued to perform his duties, albeit while in the weight control program.  From October 2009 to September 2010, the applicant failed to make satisfactory progress and that is why separation action was initiated against him.

9.  In view of the foregoing evidence, the applicant is not entitled to a revocation of his discharge orders or reinstatement in the Army.

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)                                         AR20110020630



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ABCMR Record of Proceedings (cont)                                         AR20110020630



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