IN THE CASE OF:	  

		BOARD DATE:	  26 May 2015

		DOCKET NUMBER:  AR20140017368 


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 the narrative reason for his separation from honorably discharged due to failure to meet body fat standards to a medical discharge.  

2.  The applicant states he tore a muscle in his right leg and went to surgery.  He could not do anything.  He could not run, and for that reason he was separated from the Army.  He talked to his commander at the time and he told him to get an early out.  He is on disability now for the leg.  He should have been medically discharged.  He did not know how all that worked at the time and he did not even know how to use the Department of Veterans Affairs (VA) system until someone told him he was eligible for VA benefits. 

3.  The applicant does not provide any additional evidence. 

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.  Having had prior service, the applicant enlisted in the Regular Army on 30 January 1986.  

3.  He served in Germany from on or about 17 May 1986 to 3 May 1988.  He was assigned to the 5th Maintenance Company.

4.  During his assignment to this unit, he underwent multiple weigh-ins at the unit level.  His age was 23 and his height was between 70.5 and 71 inches.  According to Army Regulation 600-9 (Army Weight Control Program (AWCP)), the maximum acceptable weight for his height and age group was 189 pounds.  Additionally, the maximum authorized body fat was 22 percent.  

5.  On 7 April 1987, the applicant's chain of command informed him that he had exceeded the body fat standards and was enrolled in the AWCP.  A goal of 3 to 8 pounds of weight loss per month would be considered satisfactory progress.  Failure to make satisfactory progress to achieve the body fat standards could result in separation from the service.  He acknowledged his responsibility to achieve body fat standards and to have his weight recorded periodically.  

6.  Between March 1987 and April 1988, he repeatedly exceeded both the weight standards and the body fat standards for his age group.  The applicant's weight fluctuated and he continued to exceed both weight and body fat standards.   

Weigh-In Date
Weight
Actual Body Fat %
7 April 1987
214 lbs
26.85%
5 May 1987 
On leave

17 June 1987
211 lbs
25.26%
24 July 1987 
209 lbs
25.84%
10 August 198
206 lbs
25.26%
21 September 1987
208 lbs
25.15%
7 October 1987
205 lbs
23.75%
7 March 1988
209 lbs
25.97%
7.  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 measurements on each counseling form and the applicant was provided a clear and safe attainable weight loss goal.

8.  On 4 April 1988, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with chapter 5-15 of Army Regulation 635-200 (Personnel Separations) for failing to meet body fat standards and enrollment in the AWCP and failing to make satisfactory progress.  The immediate commander indicated the applicant had failed to meet his weight goal as determined by Landstuhl Army Regional Medical Center in accordance with Army Regulation 600-9 after over 11 months in the Army weight control program.  He further recommended an honorable discharge.

9.  On 6 April 1988, the applicant 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.  On 19 April 1988, the Commander, 913th Medical Detachment, certified that the applicant had been examined and found to be participating in a weight control program.  The cause of his overweight was not due to a medical condition.  A weight reduction program was recommended. 

11.  The applicant's immediate commander subsequently initiated separation action against the applicant in accordance with chapter 5 of Army Regulation 635-200 for failing to meet body fat standards and enrollment in the AWCP and failing to make satisfactory progress.  The immediate commander stated the applicant had been extensively counseled by his chain of command and the Dietary Consultants at Landstuhl Army Regional Medical Center.  He had been given every opportunity and all available assistance to meet his weight goal.  Despite these efforts, he continued to maintain an apathetic attitude toward his weight.  He was placed in a special fitness program and enrolled in the AWCP.  He was weighed in once a month and he was counseled on his progress.  He made no marked progress toward meeting his goal in over 7 months.  He showed a total lack of concern for his military obligations and made no effort to meet the weight goal.  

12.  On 19 April 1988, after reviewing the separation packet, the separation authority approved the applicant's separation action under the provisions of chapter 5-15 of Army Regulation 635-200 and directed he receive an Honorable Discharge Certificate.  Accordingly, the applicant was discharged on 4 May 1988. 

13.  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 paragraph 5-15 of Army Regulation 635-200 by reason of "Failure to Meet Body Fat Standards."  He completed 2 years, 3 months, and 5 days of net active service this period.

14.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.  Paragraph 5-15 (Failure to meet Army weight control standards) of this regulation, in effect at the time, stated Soldiers who fail to meet the weight control standards set forth in Army Regulation 600-9 may be separated per this paragraph when such condition is the sole basis for separation.  a. Separation action may not be initiated under this paragraph until. The Soldier has been given a reasonable opportunity to comply with and meet the weight reduction goals prescribed for him .or her by health care personnel.  Soldiers who have been diagnosed by health care personnel as having a medical condition which precludes them from participating in a weight reduction program will not be separated under this paragraph.  The policy will not be used to separate an overweight soldier who meets the criteria for separation under other provisions of this regulation.  For example, a Soldier who, wholly apart from failure to meet the weight control standards, is an unsatisfactory performer should be processed for separation under the provisions of chapter 13.  The service of soldiers separated per this paragraph will be, characterized as honorable unless an entry level separation is required.

15.  Army Regulation 600-9 establishes policies and procedures for the implementation of the AWCP.  The primary objective of the AWCP is to ensure that all personnel are able to meet the physical demands of their duties under combat conditions and to present a trim military appearance at all times.

	a.  Section 16 states each Soldier (commissioned officer, warrant officer and enlisted) is responsible for meeting the standards prescribed in this regulation. To assist Soldiers in meeting these responsibilities, screening tables will continue to be prescribed for use as is currently being done.  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.

	b.  The height/weight screening table for male Soldiers is as follows.

Male Age Group
Height
17-20
21-27
28-39
>40
69
175
179
184
186
70
180
185
189
192
71
185
189
194
187
	c.  The maximum allowable percent body fat standards are as follows.  

Maximum Allowable % Body Fat Standard
Age Group
Male
Female
17–20 years
20%
28%
21–27 years
22%
30%
28–39 years
24%
32%
40 & Older
26%
34%
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 AWCP.  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 a certain number of 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 AWCP.  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.  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 disability system.  

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 1987 to March 1988, 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)                                         AR20140017368





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ABCMR Record of Proceedings (cont)                                         AR20140017368



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