IN THE CASE OF:	  

		BOARD DATE:  24 July 2012

		DOCKET NUMBER:  AR20120001304 


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, in effect, that his narrative reason for separation be changed from "weight control failure" to physical disability.

2.  The applicant states while he was being processed for discharge as a weight control failure, he was diagnosed with exercise-induced compartment syndrome. This condition prevents him from doing prolonged cardiovascular exercise, if not allowed time to rest, it could lead to amputation.  He was not allowed treatment for both legs, which was in a way good because the surgery on his right calf did not alleviate his symptoms.  He believes his narrative reason for separation should be changed to physical disability because the condition leaves him unfit for duty.

3.  The applicant provides copies of a Standard Form 600 (Chronological Record of Medical Care), Optional Form 275 (Medical Record Report), and his 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.  The applicant's service medical records are not available for review and the available records do not contain any documentation related to the weight control program, medical problems, or separation processing.

3.  The applicant's entrance examination shows that when he enlisted, he was age 23, 5 feet 4 1/2 inches tall, weighed 189 pounds, and he was determined to be of a heavy build.  

4.  The applicant enlisted in the Regular Army on 12 May 2001, completed training, and was awarded military occupational specialty 31F (Network Switching Systems Operator (Communications Equipment Specialist).

5.  He was awarded an Army Commendation Medal and an Army Achievement Medal for his service in support of Operation Enduring Freedom from 27 December 2002 to 15 January 2003.  He was also awarded a second Army Commendation Medal for service in Kuwait during Operation Iraqi Freedom from 19 March to 1 June 2003.

6.  The applicant provides a Standard Form 600, dated 29 October 2003, showing a diagnosis of anterior and lateral leg compartment syndrome of both legs with a referral for surgical intervention.  

7.  MedicineNet.com defines Chronic Exertional Compartment Syndrome (CECS) as a condition that occurs when exercise or injury causes generalized painful swelling and increased pressure within a compartment to the point that blood cannot supply the muscles and nerves with oxygen and nutrients.  As the compartment syndrome progresses, the structures controlled by the muscles and nerves inside the compartment may fail to function.  As the muscle cells lose their blood and oxygen supply, they use anaerobic metabolism and begin to die.  If the condition is not recognized and treated, the whole muscle can die, scar down, and contract.  Similarly, nerve cells that are damaged may fail causing numbness and weakness in the structures beyond the injury site.  If infection or necrosis develops, the individual may need the limb amputated to prevent death.

8.  A medical record report, dated 17 November 2003, shows the applicant complained of bilateral leg numbness and pain since a change in his exercise regimen following his assignment to Fort Bliss in 2002.  He underwent surgical intervention on the right leg with no surgical complications.  No post surgical medical records are available.

9.  On 19 December 2003, the applicant was honorably discharged under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Chapter 18 (Weight Control Failure).  

10.  The Army Weight Chart states for a male 5 foot 4 inches tall, aged 21 - 27, the maximum initial accession weight is 160 pounds.  Following enlistment for this age group the maximum weight is 154 pounds or a body-fat standard of 22 percent.  

11.  Army Regulation 635-200, Chapter 18 provides the following:

	a.  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.

	b.  If there is no underlying medical condition and a Soldier enrolled in the Army Weight Control Program fails to make satisfactory progress in accordance with Army Regulation 600–9, separation proceedings will be considered.

	c.  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 caused the failure to meet the standards.

12.  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.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 3-1, provides:

	a.  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; and 

	b.  The mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating.

14.  Army Regulation 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR).  Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was 29 pounds overweight at the time he enlisted.  While the record does not contain the weight program documentation, with his entrance weight it is reasonable to presume that he was or should have been on the weight reduction program from his date of entry.

2.  By his own admission, he was being processed for discharge as a weight control failure when the medical condition was diagnosed.  While he has provided medical records showing the diagnosis and surgical treatment for CECS, he did not provide any evidence that the surgical treatment failed to relieve the condition.

3.  Further, the record does not contain and the applicant has not provided any evidence to show that his medical condition rendered him physically unfit to perform the duties of his office, rank, grade or rating; or, that his medical condition warranted physical disability retirement or separation processing.

4.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  

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)                                         AR20120001304



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ABCMR Record of Proceedings (cont)                                         AR20120001304



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