IN THE CASE OF

		BOARD DATE:	    31 July 2014

		DOCKET NUMBER:  AR20130019419 


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, correction of her records to show she retired by reason of physical disability.

2.  She states she was not afforded a review by a medical board; she was administratively discharged.  She states the Department of Veterans Affairs (VA) rated her as 60-percent disabled.

3.  She provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* page 2 of a VA letter describing her service-connected conditions and associated disability ratings
* service medical records
* DA Forms 5500-R (Body Fat Content Worksheet (Female))
* 3rd endorsement to a memorandum, dated 12 February 2009, subject:  Weight Control Program

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.  On 11 February 2006, the applicant enlisted in the U.S. Army Reserve Delayed Entry/Enlistment Program (DEP).  A DA Form 5500-R completed at that time shows she was in compliance with Army body fat standards.

3.  On 28 June 2006, she was discharged from the DEP and she enlisted in the Regular Army on 29 June 2006.  After completing initial entry training, she was awarded military occupational specialty 21C (Bridge Crewmember).

4.  A DA Form 5501 (Body Fat Content Worksheet – Female), dated 31 August 2008, shows she was 34 pounds over her screening table weight and 4 percent over her authorized body fat percentage.

5.  A DA Form 5501, dated 4 December 2008, shows she was 33 pounds over her screening table weight and 2 percent over her authorized body fat percentage.

6.  A DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), dated 8 December 2008, shows she was flagged for her enrollment in the weight control program effective the same date.

7.  On 7 January 2009, she was counseled by her company commander regarding her noncompliance with Army weight standards established in Army Regulation 600-9 (The Army Weight Control Program (AWCP)), possible courses of action and solutions, and the possible adverse effects her noncompliance could have on her career.  In response to the counseling, she noted she had just ended a physical profile period and she indicated she agreed with the counseling and proposed course of action.

8.  On 7 January 2009, the applicant and her company commander signed a memorandum for record, subject:  Exceeding the Weight Control Program.  She acknowledged that:

* she should be separated from military service after two consecutive monthly weigh-ins if she does not make progress by losing 3 to 8 pounds per month
* she would be barred from reenlistment after 6 months in the program without satisfactory progress and her commander could consider her for separation
* she would be weighed monthly if medical personnel were unable to determine a medical reason for a lack of weight loss
* all favorable personnel actions would be suspended during this period
* she was required to participate in the unit's Special Physical Training Program until she met body fat standards

9.  A DA Form 5501, dated 29 January 2009, shows she was 29 pounds over her screening table weight and 2 percent over her authorized body fat percentage.

10.  On 30 January 2009, the applicant's company commander stated she exceeded the weight/height table by 33 pounds and the body fat standards by 2 percent.  He requested a medical evaluation of the applicant.

11.  A memorandum, dated 12 February 2009, subject:  Weight Control Program, shows a physician assistant (PA) found the applicant to be fit for participation in the Weight Control Program/Physical Exercise Program and found her overweight condition was not due to a medical condition.  The PA recommended the applicant's continuation in the weight reduction program.

12.  DA Forms 5501, dated 3 March, 3 April, 19 May, 17 June, and 29 July 2009, show she exceeded her screening table weight by 33 pounds or more and exceeded her authorized body fat percentage by 3 percent or more.

13.  A DA Form 268, dated 4 August 2009, shows she was flagged for field-initiated (local unit) elimination.

14.  A DD Form 2808 (Report of Medical Examination) shows she underwent a medical examination on 13 August 2009 for the purpose of separation.

	a.  The examination noted abnormalities in her upper and lower extremities and her spine.  The examining PA noted:

* decreased range of motion in her right shoulder
* lateral tracking of the patella in both knees
* tenderness in the mid to right lower lumbar area
* an old brachioplexus (the network of nerves that sends signals from the spine to the shoulder, arm, and hand) injury from 2006
* bulging discs were noted on magnetic resonance imaging (MRI)

	b.  The examining PA found her qualified for service.

	c.  Item 74b (Physical Profile), dated 20 August 2009, shows no physical limitations.

15.  On 26 October 2009, her company commander notified her that he was initiating action to separate her under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 18, for failure to meet body fat standards and he informed her of her rights.

16.  On 27 October 2009, she consulted with counsel who advised her of the basis for her contemplated separation and its effects, the rights available to her, and the effect of a waiver of her rights.

17.  After consulting with counsel, she elected not to submit statements in her own behalf.

18.  On 30 October 2009, the separation authority directed the applicant's discharge under the provisions of Army Regulation 635-200, chapter 18, for failure to meet body fat standards and directed the issuance of an Honorable Discharge Certificate.

19.  In a memorandum for record from Headquarters, Joint Readiness Training Center and Fort Polk, LA, dated 5 November 2009, subject:  Proposed Separation UP (under the Provisions) of Chapter CHP 18, AR (Army Regulation) 635-200, (Applicant), the Director of Human Resources stated the applicant's case was administratively correct and was approved.

20.  On 16 November 2009, the applicant was discharged as directed by the separation authority.

21.  Her Official Military Personnel File is void of documentation indicating a medical evaluation board (MEB) found she had physical conditions that did not meet retention standards or that she was referred to a physical evaluation board (PEB) by an MEB.

22.  The applicant provides numerous documents in support of her request, including the following:

	a.  A DA Form 5500-R, dated 29 June 2006, shows she was in compliance with Army body fat standards when she was discharged from the DEP and enlisted in the Regular Army and recommended that she lose 3 to 8 pounds per month.



	b.  Her service medical records provide the following information:

		(1)  Beginning in November 2006, she was seen by medical personnel on multiple occasions for right shoulder pain.  On 12 March 2007 after referral to the Brooke Army Medical Center Neurology Department, she was diagnosed with brachial plexitis (also called neuralgic amyotrophy).  She was advised that she could expect improvement, though the condition did persist in a percentage of patients.

		(2)  A DA Form 3349 (Physical Profile), dated 22 May 2007, shows she was issued a temporary physical profile with an expiration date of 30 July 2007 based on her diagnosis of a brachial plexus injury.  The profile limited her physical activities to walking at her own pace and distance.  She was not to carry a rucksack, wear body armor, or participate in "combatives," and she was not to lift or carry more than 15 pounds.

		(3)  A DD Form 2807-1 (Report of Medical History), dated 11 June 2007, indicates she was being examined for the purpose of a medical board.  The form was not signed by an examining medical provider and appears to be incomplete.

		(4)  A Standard Form 600 (Chronological Record of Medical Care), dated 11 June 2007, shows she was seen for part one of an MEB physical.

		(5)  On 3 August 3007, she was seen at the Orthopedic Clinic, Bayne-Jones Army Community Hospital, Fort Polk, LA, for the purpose of downgrading her physical profile.  She reported feeling no pain in her shoulder.  The examining medical provider found her right shoulder pain had resolved and released her without limitations.

		(6)  On 26 October 2007, she was seen by a health care provider for a complaint of pain and tingling in her right shoulder for the past year.  She was released for reevaluation in 14 days or sooner if the condition persisted.

		(7)  On 29 September 2008, she was examined by a PA for a complaint of pain under her kneecap.  Radiologic examination of her right knee showed no evidence of fracture, dislocation, or other abnormality.  The diagnostic impression was that of a normal knee.  Her medical records indicate she was prescribed physical therapy and later diagnosed with patellofemoral syndrome of the right knee.  Her records do not show she was issued a physical profile for this condition.

		(8)  On 12 November 2008, she was seen by a PA for pain in her right ankle.  She was prescribed a pain reliever and directed not to run, march, jump, or perform high-impact activities for 5 days.

		(9)  On 6 January 2009, she was seen by medical personnel for a complaint of lower back pain and joint pain localized in the hip.  Radiologic examination of the lumbar spine showed no evidence of traumatic, neoplastic, or significant arthritic change.  Radiologic examination of the hips showed normal hips.  She was prescribed physical therapy and osteopathic manipulation treatment.

		(10)  On 12 February 2009, she underwent a physical examination and evaluation for any underlying medical pathology that may have contributed to her overweight condition.  On 17 February 2009, a health care provider noted that there was no underlying medical pathology found to prevent weight loss.

		(10)  On 13 October 2009, she was seen by medical personnel for follow-up for lumbar spine pain and for evaluation of her right knee.  The examining PA recommended her referral to an MEB.

		(11)  On 16 October 2009, she was seen at the Soldier Readiness Processing Clinic based on referral for a herniated disc in her lumbar spine and right knee pain.  She also reported right hip pain.

		(12)  On 21 October 2009, she had her initial interview with the MEB nurse case manager.  She was referred for the interview based on her physical profile for a herniated lumbar disc and right knee pain.  The record of this visit shows she had a temporary physical profile that would expire on 20 December 2009.  She was released with work/duty limitations and the examining provider noted an appointment was requested with the MEB physician.  She agreed that she was ready for an MEB related to her medical issues.

		(13)  On 3 November 2009, she was found to have a deformity in her right knee and a tear of the lateral meniscus in her right knee.  She indicated she desired surgical repair of the knee.

	c.  Page 2 of a VA letter shows she was granted the following service-connected disability ratings:

* 20 percent for radiculopathy, right upper extremity associated with cervical degenerative disc disease and degenerative joint disease (effective 25 May 2012)
* 20 percent for right shoulder tendonitis (effective date not shown)
* 20 percent for facet and ligamentum flavum hypertrophy from L3 to S1 and bulging disc at L5 to S1 (effective date not shown)

23.  Army Regulation 635-40 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 or her office, grade, rank, or rating.  The PDES process includes evaluation by an MEB to determine if the Soldier has conditions that do not meet retention standards and, if warranted, referral of the Soldier to a PEB to determine if the Soldier's conditions render them unfit for continued service and to what degree the conditions are disabling.  Separation or retirement by reason of disability requires processing through the PDES.

24.  Army Regulation 600-9 states health care 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.

	a.  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.  A physician must note the approximate amount of time treatment is needed before the Soldier can be continued in the AWCP.  For instance, a Soldier who is medicated for an underactive thyroid gland may need 3 months before the medication enables the Soldier to begin to lose weight at the same rate as an individual with a normal functioning thyroid gland.  This is not a permanent exemption from this regulation.  Soldiers will not be permanently exempt because of chronic medical conditions;

		(2)  hospitalize Active Army personnel for necessary treatment;

		(3)  refer Reserve Component personnel to their personal physicians (at the individual's expense) for further evaluation or treatment;

		(4)  provide personalized nutritional and exercise counseling based on medical diagnosis; and

		(5)  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 (Standards of Medical Fitness), chapter 3, the Soldier will be referred to an MEB/PEB.

	b.  After a period of dieting and/or exercise for 6 months, Soldiers who have not made satisfactory progress and who still exceed the screening table and body fat standards will be processed as follows:

		(1)  if health care personnel determine the condition is due to an underlying or associated disease process, action described above will be taken; and

		(2)  the unit commander will initiate a mandatory bar to reenlistment or administrative separation proceeding for Soldiers who do not make satisfactory progress in the AWCP after a 6-month period and for whom no medical reasons exist to cause the overweight condition.

25.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 1-33 states that, except in separation actions under chapter 10 and as provided in paragraph 1-34b, disposition through medical channels takes precedence over administrative separation processing.  When the medical treatment facility commander or attending medical officer determines a Soldier being processed for administrative separation under chapters 7, 14, or 15 does not meet the medical fitness standards for retention established in Army Regulation 40–501, chapter 3, he/she will refer the Soldier to an MEB.  The administrative separation proceedings will continue, but final action by the separation authority will not be taken pending the results of an MEB.

	b.  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 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.  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.

26.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for medical conditions incurred in or aggravated by active military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Furthermore, 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.  The evidence of record does not support the applicant's request for correction of her records to show she was retired by reason of physical disability.

2.  Subsequent to her discharge, the VA has awarded her service-connected disability ratings for three conditions.  The fact that the VA has awarded these ratings is not evidence of an error in her discharge processing.  The decision to discharge her was based on Army policies and procedures.

3.  Beginning in August 2008, her weight and body fat percentage consistently exceeded Army standards.  She was given several months to make progress, but she failed to do so.

4.  The service medical records she provided show she had ongoing problems with pain in her right shoulder, lower back, hips, and right knee.  Notwithstanding these problems, a PA found the applicant to be fit for participation in the AWCP, found that her overweight condition was not due to a medical condition, and recommended her continuation in the AWCP.  The records show she had regular contact with medical personnel and there is no evidence that medical personnel ever found that she had a medical condition that caused her overweight condition.

5.  The evidence of record shows she was referred to an MEB after her separation processing had begun and after being seen by medical personnel for lumbar spine pain and evaluation of her right knee.  There is no evidence that an MEB actually reviewed her case.  The records show her administrative discharge under the provisions of Army Regulation 635-200, chapter 18, for failure to meet the body fat standards was allowed to proceed, which indicates the conditions for which she was referred to an MEB were not the cause of her overweight condition.

6.  If she had been identified as having a medical condition that caused her overweight condition and if that condition had been determined to be medically disqualifying for continued service, there would have been cause to refer her to an MEB under the provisions of Army Regulation 600-9.  There is no evidence that she met these regulatory requirements.

7.  The records do not show any evidence of error in her discharge processing.  Therefore, she 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)                                         AR20130019419



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ABCMR Record of Proceedings (cont)                                         AR20130019419



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