IN THE CASE OF:	  

		BOARD DATE:	  31 March 2015

		DOCKET NUMBER:  AR20140014414 


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 his weight control failure discharge be changed to a “medical board.” 

2.  The applicant states the Army failed to complete medical evaluation and treatment. 

3.  The applicant provides:

* separation packet
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* service medical records
* multiple DA Forms 3349 (Physical Profile)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 2 March 2010 and he held military occupational specialty 25N (Nodal Network Systems Operator).  He was assigned to B Company, 3rd Special Troops Battalion, 1st Heavy Brigade Combat Team, Fort Stewart, GA.

2.  On 30 March 2011, he participated in a monthly unit weigh-in and he exceeded the body fat standards.  On that date, a series of events took place:


	a.  The applicant's immediate commander notified him that he exceeded the weight for height table by 47 pounds and exceeded body fat standards by 4 percent, and as such ordered the applicant to be placed in the Army Body Composition Program (ABCP) (previously known as the Army Weight Control Program (AWCP)) in accordance with Army Regulation 600-9 (The Army Body Composition Program).  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 a medical evaluation in view of his failure and placement in the ABCP.  

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

3.  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 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
27 April 11
68.5"/224 lbs
179 lbs
45 lbs

26.00%
22.00%
4.00%
24 May 11
68.5"/223 lbs
179 lbs
44 lbs
-1 lbs
28.00%
22.00%
6.00%
15 June 11
68.5"/223 lbs
179 lbs
40 lbs
-0 lbs
28.00%
22.00%
6.00%
24 June 11
68.5"/219 lbs
179 lbs
40 lbs
-4 lbs
25.00%
22.00%
3.00%
5 Aug 11
68.5"/216 lbs
179 lbs
37 lbs
-3 lbs
24.00%
22.00%
2.00%
13 Sept 11
68.5"/214 lbs
179 lbs
35 lbs
-2 lbs
24.00%
22.00%
2.00%
30 Sep 11
68.5"/215 lbs
179 lbs
36 lbs
+1 lbs
25.00%
22.00%
3.00%
4.  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.

5.  On 13 May 2011, the Fort Stewart Nutrition Clinic certified that the applicant was provided with nutrition and weight-reduction counseling and indicated that follow-up counseling would be provided at the unit level and with the assistance of a designated unit fitness trainer. 

6.  On 3 October 2011, a medical official certified that based on his examination and evaluation of the applicant, he was medically cleared to participate in a weight control and exercise program, provided he was able to go by the physical profile for his lower leg pain. 

7.  On 11 October 2011, the applicant underwent a separation physical at Fort Stewart.  The military physician noted the applicant's chronic bronchitis (since childhood), hyperlipidemia, left shoulder pain, shin splints, sleep apnea (uses a continuous positive airway pressure machine), chest pain while running, and left ear pain.  He found him medically qualified for separation and assigned him a PULHES of "1-1-1-1-1-1." 

8.  Shortly after his medical examination, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with chapter 18 of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) for failing to meet body fat standards and enrollment in the ABCP and failing to make satisfactory progress.  The immediate commander further recommended an honorable discharge.

9.  On 31 October 2011, 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 he could encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him.

10.  The applicant's immediate commander subsequently 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 ABCP 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.

11.  On 4 November 2011, after reviewing the separation packet, 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 6 December 2011.

12.  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 1 year, 9 months, and 5 days of creditable military service.

13.  The applicant provides:

	a.  His service medical records, including multiple chronological records of medical care related to shin splints and sick call slips related to routine maladies. 

	b.  Multiple monthly DA Forms 3349, all of a temporary nature for shin splints, ranging in date from January to November 2011, restricting some activities (running, jumping, sprinting) and allowing other activities (biking, swimming, and using the gym).  

14.  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.

15.  Army Regulation 600-9 establishes policies and procedures for the implementation of the ABCP.

	a.  Paragraph 2-14 states that each Soldier (commissioned officer, warrant officer and enlisted) is responsible for meeting the standards prescribed in this regulation.  

	b.  Paragraph 3-5 states Soldiers who exceed body fat standards in Appendix B will be enrolled in the unit ABCP.  Enrollment in the ABCP starts on the day that the Soldier is notified by the unit commander (or designee) that he or she has been entered in the program.  While enrolled, Soldiers will be provided exercise guidance by the unit master fitness trainer and/or unit fitness training noncommissioned officer; nutrition counseling by a registered dietitian (or health care provider, if a dietitian is not available); and assistance in behavioral modification, as appropriate, to help them attain the requirements of the Army.

	c.  Paragraph 3-9 states approximately every 30 days commanders will conduct a monthly ABCP assessment to measure Soldier progress, with results annotated on DA Form 5500 or DA Form 5501.  During monthly assessments, every Soldier enrolled in the ABCP will be weighed and have a body fat assessment conducted in order to document weight and fat loss progress.   A monthly loss of either 3 to 8 pounds or 1 percent body fat are both considered to be safely attainable goals that enable Soldiers to lose excess body fat and meet the body fat standards.  Soldiers that meet either of these goals are considered to be making satisfactory progress in the ABCP.  

	d.  Paragraph 3-10(a) states a medical evaluation is required when requested by the unit commander or the Soldier; or when a Soldier is being considered for separation for failure to make satisfactory progress in the ABCP; or when a Soldier is within 6 months of expiration term of service after the initiation of a reenlistment bar for failure to make satisfactory progress in the ABCP.

	e.  Paragraph 3-10(b) states the health care provider will conduct a medical evaluation to ensure the Soldier can participate in the ABCP and rule out any underlying medical condition that may be a direct cause of significant weight gain or directly inhibit weight or body fat loss.  If an underlying medical condition is found, and if the medical condition is temporary and can be controlled with medication or other medical treatment and meets the retention standards of Army Regulation 40-501 (Standards of Medical Fitness), the health care provider will initiate treatment, prepare a temporary profile in accordance with Army Regulation 40-501 listing any functional limitations that would prevent the Soldier from fully participating in the ABCP, complete the memorandum and return to the commander for enrollment in the ABCP, and refer to appropriate specialist for nutritional and exercise counseling.  If the medical condition does not meet medical retention standards of Army Regulation 40-501 for retention and separation, including retirement, the health care provider will refer the Soldier to a medical evaluation board.  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
	f.  The maximum allowable percent body fat standards are as follows.  

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%
16.  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.

17.  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.

18.  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.  Those who exceed the Army body fat standards are enrolled in the ABCP.  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 an ABCP.  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 official determined he was not overweight due to a medical condition.  His immediate commander subsequently requested the applicant undergo a physical evaluation. The applicant was not diagnosed by health care personnel as having a medical condition that precluded participating in the Army body fat reduction program. Only if a medical condition does not meet medical retention standards of Army Regulation 40-501 for retention and separation will the health care provider refer the Soldier to a medical evaluation board.  This is not the case here.

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.  Likewise, there is no evidence he suffered from an illness or an injury that failed retention standards and necessitated his referral to a medical board.  The applicant failed to provide sufficient evidence to show he should have been separated for medical reasons.

7.  From March to October 2011, the applicant failed to make satisfactory progress and that is why separation action was initiated against him.  He was not discharged because of a medical condition.  He was discharged for failing to achieve weight standards.  In view of the foregoing evidence, the applicant 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 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)                                         AR20140014414





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ABCMR Record of Proceedings (cont)                                         AR20140014414



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