IN THE CASE OF:	   

		BOARD DATE:	 9 June 2015 

		DOCKET NUMBER:  AR20140016105 


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 her honorable discharge issued at her expiration of term of service (ETS) be changed to show she was discharged for medical reasons.

2.  The applicant states she was barred from reenlistment on 30 November 1982 for weight control.  She had a T-3 profile for the development of varicose veins due to long periods of standing on concrete floors due to her military occupational specialty (MOS) as a 94B (Food Service Specialist).  This caused her legs to swell and hurt after constant prolonged standing and the development of asthma.  

3.  The applicant provides: 

* DA Form 2-1 (Personnel Qualification Record)
* service medical records
* DA Form 4126-R (Bar to Reenlistment Certificate)
* Standard Form 93 (Report of Medical History), dated 5 May 1983

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 2 November 1977, she enlisted in the Regular Army for 3 years.  She completed basic combat and advanced individual training and was awarded MOS 94B.

3.  On 27 June 1980, she immediately reenlisted for 3 years.

4.  Medical service records provided by the applicant show:

	a.  On 1 June 1978, she was treated for pain originating in the arches of both feet and muscle strain from standing all day in the mess hall (concrete floor).

	b.  On 28 August 1978, she was treated for intermittent chest pain over 3 to 
4 months with last episode last week.  Lying down relieves the pain.  The examiner stated she appear to be healthy and the impression was possible gas pains.  Mylanta was prescribed.

	c.  On 18 October 1978, she returned for a re-check because the medicine did not help and she was out of medicine.  She was referred to physician assistant (PA) and told to return when she had pain.

	d.  On 7 June 1979, an entry indicates the applicant stated she started an inhaler in November 1977, stopped in December 1977, restarted March 1978 and continued until March 1979.  Last seen January 1979 and given 3 months supply.

	e.  On 13 January 1980, she was treated for sore legs.  She was standing for long periods of time.  Examination noted flabby legs, poor muscle tone and superficial varicose veins.  It was also noted she was disgruntled with her present job.  She was advised to exercise to improve muscle tone.

	f.  On 25 August 1980, she was placed on temporary profile for varicose veins.  She was not to have prolonged standing over 2 hours without 10 minutes break.  These limitations were for 30 days and were automatically canceled on 25 September 1980.

	g.  On 7 September 1982, she received an initial weight control evaluation.  She received initial oral and written instructions on a diet for 2 weeks.  She was 65 inches tall and weighed 174.9 pounds.

	h.  On 8 October 1982, she was 65 inches tall and weighed 174.9 pounds.

5.  On 26 January 1981, she accepted nonjudicial punishment (NJP) for being absent without leave 12-14 January 1981.

6.  On 30 November 1982, her commander initiated a Bar to Reenlistment Certificate due to her NJP on 26 January 1981 for being AWOL.  In addition, she had shown continued apathy toward her health and the Army Weight Control Program.  Her start weight in the program was 178 pounds on 27 April 1982.  This was 36 pounds over the required weight for her height.  As of 30 November 1982 she had lost only 7 pounds.  Her lack of concern for Army policy could not be over-looked.  On 30 November 1982, she acknowledged she was furnished a copy of her commander's recommendation and she indicated she did not desire to make a statement in her own behalf.  On 1 December 1982, the bar to reenlistment was approved.

7.  On 28 June 1983, she was discharged due to the expiration of her term of service.  She completed 5 years, 7 months, and 25 days of active service that was characterized as honorable.  She had 2 days of time lost.

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, established the Army Physical Disability Evaluation System (PDES) and set forth policies, responsibility, and procedures that applied in determining whether a member was unfit because of physical disability to perform the duties of his or her office, grade, rank, or rating.

	a.  The medical treatment facility commander with the primary care responsibility evaluated those referred to him and would, if it appeared as though the member was not medically qualified to perform duty or failed to meet retention criteria, refer the member to a medical evaluation board (MEB). 
Those members who did not meet medical retention standards were referred to a physical evaluation board (PEB) for a determination of whether they were able to perform the duties of their grade and military specialty with the medically-disqualifying condition.

	b.  Paragraph 2-2b(1) stated that when a member was being separated by reasons other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she was scheduled for separation or retirement created a presumption that he or she was fit.  This presumption could be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

	c.  Chapter 3 contains the policy and outlines the standards for determining unfitness because of physical disability.  It states, in pertinent part, that 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 soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  Paragraph 3-3b(1) states, in pertinent part, that for an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his/her office, grade, rank or rating.  

DISCUSSION AND CONCLUSIONS:

1.  She received treatment for varicose veins and soreness in her feet and legs.  On 25 August 1980, she was placed on a temporary profile for varicose veins for 1 month.  There was no evidence this profile was extended beyond the 1 month.  
2.  She was placed on an inhaler; however, the diagnosis of asthma is not shown in the medical records she provided.

3.  She did not receive a bar to reenlistment due to a medical condition.  Her bar to reenlistment was based on her NJP and her apathy toward her health and the Army Weight Control Program.  Being overweight is not a physical disability to be evaluated by the PDES.  

4.  There is no evidence her varicose veins or possible asthma prevented her from performing the duties of her rank and MOS.  Therefore, in the absence of 
clear and convincing evidence that she was unable to perform her duties for a period of time or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendering her unfit, it is presumed she was fit for duty at the time of her separation.  

5.  The applicant completed the full period of her enlistment.  Therefore, the reason for her discharge is correct.  There is insufficient evidence to change her properly issued discharge to show she was discharged for medical reasons.  


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)                                         AR20140016105



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ABCMR Record of Proceedings (cont)                                         AR20140016105



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