IN THE CASE OF:    

		BOARD DATE:  11 December 2014	  

		DOCKET NUMBER:  AR20140006204 


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 his records to show he was medically discharged vice honorably discharged for weight control failure. 

2.  The applicant states:

* the narrative reason for his separation did not take into account the fact that he was diagnosed with a mental health condition
* he also had several other medical conditions that prevented him from performing physical training
* he was on a profile for at least a year and he was hospitalized for one month 
* some of the medications he was given for the mental health condition state that weight gain was one of the risks of the medication
* while he was offered counseling for the weight gain, all these other factors mitigated the efforts he was making to reduce his weight 
* the Department of Veterans Affairs' (VA) rating of 60 percent verifies the extent of service-connected disabilities that he was dealing with
* the vast majority of these conditions would be considered unfitting conditions and would have warranted a medical evaluation board (MEB)
* he feels he was treated unfairly with the process not being initiated; he also feels he was discharged for weight control failure as an easier and cheap way for the Army to separate him
* the real reason for his separation should have been service-connected conditions that the VA validated 

3.  The applicant provides his VA rating decision and related medical forms.  

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 18 September 2009.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 11B (Infantryman). 

2.  He served in Afghanistan from 5 June 2010 to 29 May 2011 and he was advanced to specialist/E-4 on 18 September 2011.  He was assigned to the 2nd Battalion, 502nd Infantry Regiment, Fort Campbell, KY. 

3.  On 17 January 2012, during a unit weight-in, the applicant failed the screening table and body fat standards for his age group.  He exceeded the weight screening table by 57 pounds and the body fat standards by 7 percent.  His Actual Weight was 264 pounds and his Screening Table Weight was 206 pounds.  His Actual Body Fat Percentage was 29 percent and his Authorized Body Fat Percentage was 22 percent.  He was determined to be not in compliance with Army Regulation (AR) 600-9 (Army Weight Control Standards (AWCP) - now called The Army Body Composition Program).  

4.  On 18 January 2012, a series of events happened: 

	a.  The applicant's immediate commander notified the applicant that he was determined to have exceeded the body fat standards of 22 percent outlined in AR 600-9.  His actual body fat was 29 percent.  He was informed that a loss of 3 to 8 pounds per month is considered to be satisfactory progress.  Failure to do so could result in separation. 

	b.  The applicant's supervisor counseled him and provided a thorough plan of action regarding diet and exercise.  The applicant acknowledged his responsibilities to achieve body fat standards and that he had been counseled for losing weight.  Additionally, his immediate commander ordered he undergo nutrition education and weight reduction counseling as required by AR 600-9. 

5.  On 31 January 2012, the Noncommissioned Officer in Charge of the Nutrition Care Division certified that the applicant was provided nutrition and weight reduction counseling.  Follow-up counseling would be provided at the unit level.

6.  On 10 February 2012, the applicant again failed the screening table and body fat standards for his age group.  He exceeded the weight screening table by 50 pounds and the body fat standards by 7 percent.  His Actual Weight was 262 pounds and his Actual Body Fat Percentage was 29 percent.  He was still determined to be not in compliance with AR 600-9.  He was counseled by his chain of command and he was provided with a plan of action. 

7.  On 12 March 2012, the applicant again failed the screening table and body fat standards for his age group.  He exceeded the weight screening table by 52 pounds and the body fat standards by 7 percent.  His Actual Weight was 264 pounds and his Actual Body Fat Percentage was 29 percent.  He was still determined to be not in compliance with AR 600-9.  He was counseled by his chain of command and he was provided with a plan of action. 

8.  On 10 July 2012, the applicant again failed the screening table and body fat standards for his age group.  He exceeded the weight screening table by 48 pounds and the body fat standards by 8 percent.  His Actual Weight was 262 pounds and his Actual Body Fat Percentage was 30 percent.  He was still determined to be not in compliance with AR 600-9.  He was counseled by his chain of command and he was provided with a plan of action. 

9.  On 12 September 2012, following a medical examination, the Battalion Physician Assistant certified that based on his examination and evaluation, the applicant was medically cleared to participate in weight and exercise program.  If medically cleared, the Soldier would be enrolled in the AWCP and would be administratively handled. 

10.  Between 12 and 24 September 2012, the applicant underwent a separation physical examination.  The military physician found him medically qualified for service and/or separation and assigned him a PULHES of "1-1-1-1-1-1."

11.  On 5 December 2012, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him for failing to meet body fat standards or make satisfactory progress, in accordance with chapter 18 of AR 635-200 (Enlisted Administrative Separations).  The immediate commander recommended an honorable discharge.  

12.  On 5 December 2012, the applicant acknowledged receipt of the notification of separation memorandum.  He acknowledged he was afforded the opportunity to counsel with military counsel (or civilian counsel at his expense) but he declined this opportunity.  He understood 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 on his behalf.  

13.  On 5 December 2012, the applicant’s immediate commander initiated separation action against the applicant in accordance with AR 635-200, chapter 18, for weight control failure.  The immediate commander stated (through the unit first sergeant) that the applicant had had every chance to become within standards.  He lacked motivation and self-discipline.  His continued disregard to maintain Army standards affected the unit and reflected a deeper disregard to discipline and authority.  His intermediate commander thoroughly reviewed the separation packet and recommended approval with an honorable discharge.

14.  On 21 December 2012, the separation authority approved the applicant's separation from the Army under the provisions of AR 635-200, chapter 18, and directed his service be characterized as honorable.  Accordingly, the applicant was discharged on 10 January 2013. 

15.  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 AR 635-200, by reason of weight control failure.  He had completed 3 years, 3 month, and 23 days of creditable military service.  

16.  The applicant's records are devoid of: 

* Permanent physical profile or finding of medical unfitness
* A finding of a medical condition that did not meet retention standards in accordance with AR 40-501 (Standards of Medical Fitness)
* A diagnosis for referral to the Army Physical Disability Evaluation System (PDES) 
* A diagnosis of any condition or injury that rendered him unable to perform the duties required of his grade and military specialty
* Commander's statement of inability to perform the duties required of his grade and military specialty 

17.  He provides his VA rating decision, dated 9 October 2013.  It shows the VA awarded him service-connected disability compensation, effective 11 January 2013, for/at the rate of: 

* Mood disorder, also claimed as post-traumatic stress disorder, 30 percent effective 
* Tinnitus, 10 percent
* GERD, 10 percent
* Degenerative arthritis, 10 percent
* Right hip strain with limitation of flexion, 10 percent
* Patellofemoral pain syndrome, right knee, 10 percent
* Degenerative joint disease, right shoulder, 10 percent
* Chronic right ankle strain, 10 percent
* Thigh, right hip strain, 10 percent
* Limitation of extension, right ankle strain, zero percent
* Allergic rhinitis, zero percent
* Left index finger fracture, zero percent

18.  AR 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 AR 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 Army Weight Control Program fails to make satisfactory progress in accordance with AR 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.  AR 600-9 (currently in effect) establishes policies and procedures for the implementation of the AWCP.  It states each Soldier 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. 

20.  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.  One is also required for Soldiers being considered for separation due to failure to make satisfactory progress in a weight control program.  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 entered in a weight control program by the unit commander.  

21.  AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the 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.  

	a.  The PDES assessment process involves two distinct stages: the Medical Evaluation Board (MEB) and the Physical Evaluation Board (PEB).  The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service.  A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty.  A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service.  Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees. 

	b.  Paragraph 3-2b (processing for separation or retirement from active duty) states 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.  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.  The presumption of fitness may be overcome if the evidence establishes that:

		(1)  The Soldier was, in fact, physically unable to adequately perform the duties of his or her office, grade, rank or rating for a period of time because of 

disability.  There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions.

		(2)  An acute, grave illness or injury or other significant deterioration of the Soldier's physical condition occurred immediately prior to, or coincident with processing for separation or retirement for reasons other than physical disability and which rendered the Soldier unfit for further duty.

22.  AR 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, disabilities are rated using the VA Schedule of Rating Disabilities (VASRD).  Ratings can range from 0 percent to 100 percent, rising in increments of 10 percent.  The VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. 

23.  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.

24.  Title 38, U.S. Code, 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 on the part of the Army.  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.

25.  To determine medical standards for different jobs, and to ensure military members are medically qualified to perform the duties of that job, the military developed a medical profile indicator, known as the physical profile serial system. 
Since analysis of a Soldier's medical, physical, and mental status plays an important role in assignment and welfare, great care is executed in the functional grading.  The functions are considered under six factors designated as
P-physical capacity or stamina, U-upper extremities, L-lower extremities,
H-hearing and ears, E-eyes, and S-psychiatric (P-U-L-H-E-S).  A Soldier having a numeral designation of "1" under all factors is considered to possess a high level of medical fitness.

DISCUSSION AND CONCLUSIONS:

1.  Body-fat 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 AR 600-9.  Soldiers who exceed the weight tables are measured for body-fat.  Those who exceed the Army body-fat standards are enrolled in a weight management program.  The objectives of this 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.  He acknowledged that 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 AR 600–9 or make satisfactory progress.  Accordingly, he was subject to involuntary separation. 

4.  He was provided with nutrition education and weight reduction counseling and he was referred to the health clinic to determine the cause of his overweight.  The military medical doctor determined that the cause of the overweight was not due to medical condition.  His immediate commander also 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.  His separation processing was conducted to standards.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation board.

5.  The evidence of record further confirms that his narrative reason for separation was assigned based on the fact that he was discharged under the provisions of AR 635-200, chapter 18 for weight control failure.  Absent the weight control failure there was no reason to process his discharge.  The underlying reason for his discharge was his weight control failure.  The only valid narrative reason for separation permitted under that paragraph is "Weight Control Failure" which is correctly shown on his DD Form 214.  The applicant did not provide a reason to change it.  

6.  With respect to the applicant’s medical condition(s):

	a.  The available evidence shows the applicant was evaluated by military medical personnel after his enrollment in the AWCP and the medical doctor stated that the applicant was not over weight due to a medical condition.  

	b.  The applicant's record is void of a permanent physical profile.  But even if there was one, a permanent physical profile does not translate to an automatic consideration by a medical evaluation board.  The key element in the disability system is the presence of a medical condition that renders a Soldier unable to reasonably perform the duties required of his/her grade and military specialty.  He failed to provide evidence that he was unable to perform the duties required of his grade and military specialty.

	c.  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 applicant's service was not interrupted by a physical condition or medical necessity.  It was interrupted by his failure to meet weight control standards and failure to make satisfactory progress.   

	d.  He contends, in effect, since the VA awarded him service-connected disability for PTSD, the Army should have done the same.  There are two important concepts that require clarification.

		(1)  The Army and the VA disability evaluation systems are independent of one another.  A diagnosis of a medical condition and an award of a rating by another agency do 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.  The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting a disability rating.

		(2)  If and when identified, diagnosed, evaluated, and rated, a disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation (emphasis added) and can only be accomplished through the PDES.  Only those conditions that render a member unfit for continued military duty at the time of separation will be rated.  However, the VA could potentially rate all service-connected conditions.

		(3)  There is insufficient evidence to show there was not a single condition actively limiting his ability to perform his military duties.  There was no diagnosis of any conditions that failed retention standards or were being disabling at the time of his separation.  Whenever there is a disability, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

7.  After a comprehensive review of the applicant's records and the evidence provided, there does not appear to be an error or an injustice in his case.  In view of the foregoing, there is insufficient evidentiary basis for granting the applicant's 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 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)                                         AR20140006204





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ABCMR Record of Proceedings (cont)                                         AR20140006204



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