MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:            29 April 1999     
	DOCKET NUMBER:   AR1999016554

	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	
	Ms. Deborah L. Brantley		Analyst	

  The following members, a quorum, were present:

	Ms. Ann M. Campbell		Chairperson	
	Mr. Edwin S. Castle		Member	
	Mr. Christopher J. Prosser		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:  In effect, disability retirement or separation.

APPLICANT STATES:  His chain of command falsified documents, which prevented him from reenlisting.  He indicates that he was not entered into the weight control program until January 1995 but his command falsified a flagging action, which suspended all favorable personnel action by back dating the document to show he was flagged in November 1994.  He notes the flagging document shows him assigned to B Battery, although in November 1994 he was assigned to C Battery.  Additionally, he states that the captain who authenticated the flagging action (a Captain Clark) back dated the document to 14 November 1994 in spite of the fact that Captain Clark was not assigned to B Battery until May 1995.  He notes that his command failed to follow the weight control procedures outlined in Army Regulation 600-9.  The applicant also states that he was on continuous physical profile during the period he was in the weight control program.  He also maintains that he should have been retained on active duty long enough to allow for his foot to heal following surgery, and believes, in effect that, that he was not afforded “a standard of care provided by health care personnel.”  He states he was “forced into the civilian sector without any time for preparation” and that as such a “tremendous” amount of stress was placed on his family.  He states he has been unable to secure employment and that the VA merely prescribes Moltrin for his heal pain.  In support of his request he submits a response to a congressional inquiry which indicates he was placed in the weight control program on 12 January 1995, that steps had been taken to ensure his former unit complied with the requirements of the weight control program, and admitted that the type of surgery the applicant had undergone took “a long time to heal and the pain he was experiencing was a normal part of the healing process.”

EVIDENCE OF RECORD:  The applicant's military records show:

He initially entered active duty on 6 August 1986 for a period of 4 years and successfully completed basic and advanced individual training as a mechanic.  In 1989 he graduated from the Primary Leadership Development course by meeting the standards and on 1 June 1990 he was promoted to pay grade E-5.

On 27 July 1990, while assigned to Fort Campbell, Kentucky he reenlisted for a period of 4 years, which established his separation date as 26 July 1994.  On 
3 February 1994 he reenlisted for an additional 2 years, which established his separation date as 2 February 1996.

According to his initial performance evaluation, completed in December 1990 for the period June 1990 through October 1990, the applicant exceeded the Army’s weight standards (he weighed 210 pounds at the time).  However, the evaluation notes he was not enrolled in a weight control program at that time because a medical evaluation to determine if his weight condition was medically related had not been completed.  His rater indicated that his overall potential for promotion was marginal and his senior rater rated his overall performance and potential as fair.

His next report, for the 12 month period ending in October 1991, indicated the applicant still exceeded the screen weight table at 190 pounds but was within the body fat standards established by Army Regulation 600-9.  His next two reports, ending in April 1992 and February 1993 indicate that he continued to be within the body fat standards authorized by Army Regulation 600-9 in spite of the fact that he exceeded the screening weight table.

By December 1993 he exceeded both the screening weight and body fat standards and was enrolled in a weight control program.  His evaluation report indicates he weighed 215 pounds at the time.  He was apparently successful in the weight control program because his report ending in March 1994 shows his weight at 211 but that he was now, once again with the body fat standard.  However, just two months later, in May 1994, he was denied enrollment in the Basic NCO Course because he exceeded the weight standard by 46 pounds and the body fat standard by 6.58 percent.

In November 1994 his evaluation report still indicates he was overweight at 236 pounds but was “meeting monthly requirements on weight control program.”

All of the applicant’s performance evaluation reports, rendered between 1990 and 1994, indicated he had successfully passed an annual physical fitness test.  They also indicate the applicant performed his duties in a satisfactory manner.

His final evaluation report, rendered for the period December 1994 through March 1995 indicates the applicant was still enrolled in a weight control program but “is making progress.”  At that point his weight was recorded at 247 pounds.  The report also notes the applicant had a physical profile at the time but that the “soldier’s work performance is not effected by profile.”

The applicant provided copies of his physical profile statements, which indicate he was on temporary profiles almost continually between 8 January 1995 and January 1996.  All of the profiles, with one exception, allowed him to walk, run, bicycle and swim at his own pace.

The applicant’s record contains only one “flagging” action, which suspended all favorable personnel actions, including his eligibility to reenlist.  That flagging action reflects an effective date of 14 November 1994 and is dated 14 November 1994 as well.  The document does show the applicant’s unit of assignment as B Battery, 3rd of the 27th Field Artillery.  Based on information contained on the applicant’s performance evaluation reports it does appear he was not assigned to B Battery until at least December 1994 and his March 1995 evaluation report shows a Captain Shafer, not Captain Clark, as the unit commander.

Army Regulation 600-9, which establishes the policies and procedures for the Army’s weight control program and standards, states that when a determination is made that a soldier exceeds the Army’s weight control standards he or she will be entered into a weight control program and flagged under the provisions of Army Regulation 600-31.  Following removal from a weight control program if it is determined that the individual exceeds the screening table weight and body fat standard with 12 months from the date of the previous removal the individual will be subjected to administrative separation under the provisions of Army Regulation 635-200.  Those who are in noncompliance with Army Regulation 600-9 after 12 months but within 36 months of the previous removal will be allowed 90 days to meet the standards.  If they failed to meet the standards after the 90 days they will be subject to administrative separation.

Army Regulation 601-280, which establishes the policies and procedures for the reenlistment of enlisted personnel, states that soldiers may reenlist not earlier than 8 months nor later than 3 months prior to their scheduled separation date.

On 2 February 1996, the applicant’s scheduled separation date, he was honorably discharged from the Army and received $8620.00 in separation pay.  His DD Form 214 shows a separation code of JBK indicting the applicant was still ineligible to reenlist at the time he was separated from active duty.  

Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

Army Regulation 40-501, at paragraph 3-3a, provided, in pertinent part, that performance of duty despite an impairment would be considered presumptive evidence of physical fitness. 

Attempts to locate copies of the applicant’s service medical records or secure disability information from the VA were not successful.

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

1.  The evidence of record indicates the applicant was enrolled in a weight control program at the time his December 1993 performance evaluation report was rendered.  Although his March 1994 report indicates he was no longer in the program he apparently again exceeded the standards of Army Regulation 600-9 by May 1994 when he was denied entry in to the Basic NCO Course because of his weight.  All of the applicant’s reports rendered subsequent to May 1994 (in November 1994 and March 1995) indicate he continued to be enrolled in a weight program and his separation with severance pay in February 1996 confirms he still exceed the standards at that point.

2.  Notwithstanding the fact that the evidence indicates the applicant was 
re-enrolled in a weight program within 12 months of being removed from a program, and as such should have been considered for administrative separation, the Board notes his command permitted him to remain on active duty until his scheduled separation date in February 1996.  There is no evidence, and the applicant has not provided any that his weight condition was medically related or that his physical profiles prevented from losing weight in order to comply with the Army’s standards.

3.  While it does appear that the applicant’s unit commander may have backdated a flagging action that action had no bearing on the applicant’s inability to reenlist.  The applicant was clearly in an overweight status when he entered his reenlistment eligibility window in July 1995 (8 months prior to his February 1996 ETS date) and continued to exceed standards well beyond the date his reenlistment eligibility window closed in December 1995 (3 months prior to his ETS.)  Even if the applicant was not actually enrolled in the program until January 1995, as stated in the response to the congressional, it does not change the fact that he was ineligible to reenlist during his reenlistment eligibility window.

4.  The Board can only surmise, based on the fact that the applicant’s records contain only one flagging action, in spite of the fact the applicant was clearly in an overweight condition on more than one occasion as verified by his evaluation reports, that Captain Clark may have recognized the applicant was not flagged when he assumed command of Battery B and in an effort to rectify the unit’s weight control program initiated the flagging action based on information available to him at that time.  However, as noted previously, the commander’s decision to backdate the flagging action had no bearing on the applicant’s inability to reenlist during his reenlistment window.

5.  Although the applicant’s unit may have had a shoddy weight control program the Board does note his unit may have attempted to accommodate the applicant by allowing him to remain on active duty until his scheduled separation date in February 1996 when there was clearly evidence he could have been separated months earlier for being reenrolled in a weight program within 12 months of his previous removal.

6.  Although the applicant may have had a series of physical profiles during his last year of military service his continued performance of duty until his separation from active duty in February 1996 raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness of injury concomitant with his separation.

7.  The evidence of record indicates he did not have any medically unfitting disability, which required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation.  Additionally, the Board notes there was no basis to retain him on active duty beyond his separation date simply because he was still experiencing pain following his heal operation.  Both the applicant and his congressional response indicate that such pain was a normal part of the healing process

8.  While the Board sympathizes with the applicant’s plight the evidence clearly shows the applicant was overweight at the time he entered his reenlistment window and was still overweight at the time of his separation.  In fact the Board contends the applicant should have been well aware, considering his length of service and grade, that he was subject to separation if he did not comply with the Army’s weight standards and as such should have been preparing himself for that eventuality if he was unable able to loss the weight.

9.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

10.  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

___amc__  ___esc__  __cjp___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999016554	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990429	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1. 108.00		
2.		
3.		
4.		
5.		
6.