MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           10 November 1998                   
	DOCKET NUMBER:   AC98-06249

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Ms. Irene E. Wheelwright		Member	
	Ms. Margaret K. Patterson		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  Correction of his military records to show he was medically retired.

APPLICANT STATES:  That the proper procedures were not followed in processing his separation under the provisions of Army Regulation 635-200, Chapter 5-15.  He was not seen by a medical board prior to his discharge.

EVIDENCE OF RECORD:  The applicant's military records show:
He enlisted in the Regular Army on 28 January 1981.  He completed basic training and advanced individual training and was awarded military occupational specialty 76V (Materiel Storage and Handling Specialist).  
The applicant had been in the Army Weight Control Program previously and was removed from the program on 4 January 1990.
He was promoted to Sergeant E-5 on 1 July 1991.

On 8 November 1991, the applicant was again placed into the Army Weight Control Program.

The applicant’s non-commissioned officer evaluation report (NCO-ER) for the period July 1991 - February 1992 shows he was rated as “success” in all areas except Physical Fitness and Military Bearing, where he was rated as “needs much improvement.”

On 13 August 1992, the applicant was counseled by his commander that, based upon his lack of progress in the weight control program, he would be eliminated from further military service.

On 25 August 1992, the applicant completed a separation physical.  He was found to be qualified for separation pending reports from Internal Medicine and reports from) Orthopedics.  He was given a physical profile of 111111, no physical limitations.  On his Report of Medical History, the applicant noted numerous medical problems.

The Internal Medicine consultation sheet noted there was no bar to separation/chapter action and no medical evaluation board requirement..  His Orthopedic consultation sheet noted the applicant was advised to go to a Veterans Affairs hospital for all orthopedic complaints even if he is out of the Army.

On 22 September 1992, the applicant signed a memorandum for the brigade Staff Judge Advocate to acknowledge the fact that he did receive a medical evaluation prior to being enrolled into the overweight program.  That document had been lost and the information could not be obtained.

On 7 October 1992, separation action under the provisions of Army Regulation 635-200, Chapter 5, paragraph 15, Failure to Meet Army Weight Control Standards, was initiated.

On 7 October 1992, the applicant acknowledged receipt of notification of the separation action and was advised by consulting counsel of the basis for such action.  As he had over 6 years of military service, he was entitled to have his case heard by an administrative separation board.  He waived consideration of his case by such a board; he did not submit a statement in his own behalf; he requested consenting (sic) counsel but not representation by counsel.  He signed that he understood he could withdraw any of the above waivers at any time prior to the date the separation authority approved the separation.

On 8 October, the commander formally recommended the applicant be separated for failure to meet the Army weight control standards.  He noted that no medical conditions had been found to be the cause of his overweight conditions.

The appropriate commander approved the separation recommendation and directed the applicant receive an honorable discharge.

The applicant’s NCO-ER for the period March 1992 - October 1992 shows he was rated as “success” in all areas except Physical Fitness and Military Bearing, where he was rated as “needs some improvement.”

On 26 October 1992, the applicant was honorably discharged, in pay grade E-5, after completing 11 years, 8 months and 29 days of active service with no lost time.

In November 1992, the VA awarded the applicant a combined evaluation of      70 percent disability, increased to 80 percent on 1 December 1996.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 5-15 provides that soldiers who fail to meet the Army’s body composition/weight control standards may be separated when such condition is the sole basis for separation.  Soldiers must be given a reasonable opportunity to comply with and meet the weight/body fat 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 such a program will not be separated under this paragraph.

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  The regulation defines “physically unfit” as unfitness due to physical disability.  The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purpose of his employment on active duty.  “Physically unfit” is synonymous with “unfit because of physical disability.”

In the processing of this case, advisory opinions from the Medical Advisor to the Army Review Boards Agency and from the Physical Disability Agency were obtained (SEE ATTACHED).  The applicant rebutted both opinions.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  The applicant was properly placed into a weight control program when it was determined he exceeded the prescribed height/weight/body fat composition standards.  The medical evaluation preceding this action is not available, but a statement signed by the applicant states one was completed.  The applicant does not mention in this statement that the evaluation found any medical condition which would preclude him from participating in the program.

2.  Separation action was properly initiated when the applicant failed to make satisfactory progress in the weight control program.  The applicant was entitled to have his case heard by an administrative separation board but waived this right.  He acknowledged that he knew he could withdraw this waiver at any time prior to the separation authority approving the separation.

3.  The applicant’s separation physical determined he had numerous medical complaints, but he was cleared for separation even after special consultation with the Internal Medicine and Orthopedics staffs.  None of these medical complaints made him physically unfit for duty as shown by the ratings he received on his two NCO-ERs covering the period July 1991 - October 1992.

4.  The rating action by the VA does not necessarily demonstrate an error or injustice in the Army rating.  The VA, operating under its own policies and regulation, assigns disability ratings as it sees fit.  Any rating action by the VA does not compel the Army to change its reason for discharge.
5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

CMF_____  IEW_____  MKP_____  DENY APPLICATION

						Loren G. Harrell
						Director