MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           19 August 1999                            
	DOCKET NUMBER:   AR1999018180

	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. Judy Blanchard Miller		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Mr. Edward Williamson		Member	
	Ms. Sherri V. Ward		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, that she be given a medical discharge in lieu of her discharge under Army Regulation 635-200, chapter 18, for being over- weight; that charges of reprisal be brought against an unnamed officer and senior noncommissioned officer and that her career be given back to her. 

APPLICANT STATES:  In effect, that she was in the Army for 17 years and 
7 months.  She was erroneously discharged from the Army for being overweight. She further states that there is compelling evidence that the body fat measurements were manipulated; that she has chronic service related medical problems, that are clearly documented in her medical records and that she was wrongfully discharged in violation of Army Regulation 600-9, Sec II, para 18c, Army Regulation 635-200, chapter 18, Army Regulation 40-501 Standard of Medical Fitness.  The applicant submitted letters and other documents in support of her allegations.   

EVIDENCE OF RECORD:  The applicant's military and medical records were unattainable.  Information discussed herein was obtained from alternate sources.

She entered active duty on 8 January 1980; her service was continuous through reenlistment and extensions.  The applicant’s military occupational specialty was 93P (Aviation Operation Specialist).  The highest grade she completed was pay grade E-7. 

On 22 February 1996, a medical review of the applicant’s medical record was conducted by the flight surgeon.  The flight surgeon stated that he believed that the applicant’s weight problem and her inability to take the Army’s Physical Fitness Tests (APFT), were secondary to her many problems.  The flight surgeon further stated that since 1991, the applicant had been on profiles for her back and foot problems, which did not allow her to exercise effectively.  He believed that if the applicant had participated in a physical training (PT) at that time, she would not have had such difficulty.  His opinion was reinforced by her 15-pound weight loss, since coming off her most restrictive profiles.  The flight surgeon recommended that the applicant be allowed to continue PT on her own.  Remedial PT would only aggravate her back and foot problems, hampering her recovery.  The flight surgeon recommended that the applicant continue PT on her own for 9 months to 1 year to allow for a sensible weight loss rate and a return to fitness, unlikely to cause further injury.  

The commander supported the flight surgeon’s recommendation in allowing the applicant to continue physical training on her own.  However, the commander required that the applicant conduct her physical training at the time and location of the unit physical training.  He also required that she be weighed in quarterly (Jul/Oct/Jan), with a training NCO to help in tracking her progress and to ensure that her physical training was conducted within the limits of her profile.  He further stated that he would reevaluate her status with the recommendation of the flight surgeon on or about the 27 February 1997.  

On 4 April 1996, the applicant was weighed and found to have exceeded her maximum allowable weight by the appropriate screening tables.  At that time, she was determined to be 36 pounds above her maximum allowable weight and the acceptable percentage body fat by 3.85 percent.  On 10 April 1996, the applicant was counseled and advised of her rights. 

On 18 April 1996, the applicant made a complaint concerning harassment by her chain of command to her local Inspector General (IG).  The applicant’s complaint was investigated by the Hunter Army Airfield garrison commander and found unsubstantiated.  She appealed the findings of her complaint to the garrison commander, who found no basis for granting an appeal.  The applicant alleges that a statement that was used to decide the findings of the EO complaint was not a part of the complaint packet she had requested through the Freedom of Information Act. 

On 17 June 1996, the applicant made a complaint concerning harassment by her chain of command to her Congressman.  However, the particulars are missing from her files.
 
On 2 December 1996, the applicant was formally counseled for failure to follow instructions.  (She failed to participate in an organized physical training program). 

On 6 December 1996, the company commander sent the applicant to the health clinic for a reevaluation of her profile, which specified no outdoor physical training for a period of 1 month.  While in the health clinic the applicant had to be told “At Ease’ twice, resulting in the officer in charge clapping his hands twice to finally get her attention and let him explain the reason for that particular visit.   When the officer in charge told the applicant “at ease “ by her own admission, she stated that she would “knock the officer into the wall”.  The applicant received a Letter of Reprimand for being disrespectful and for communicating a threat.  She was counseled and advised her of rights.

A Report of Medical Examination dated 6 December 1996, found the applicant medically fit for separation with a physical profile of 211121.  

On 10 December 1996, The applicant’s first sergeant requested a copy of the reevaluated profile written on 6 December 1996.  The applicant refused to give the first sergeant a copy of the reevaluation.  The first sergeant again asked her for a copy of the profile and again she refused to provide him with a written copy. This act was done in the presence of other senior NCO’s.  The first sergeant ordered her to assume the position of parade rest and told her to provide him with the written profile and to “Move Out”.  When the first sergeant left his office a few minutes later, the profile was placed on his counter.  The applicant was administered an adverse counseling by her company’s first sergeant for insubordination.  The applicant was counseled and advised of her rights.   

On 17 December 1996, the company commander referred the applicant for a mental health evaluation.  His decision was based on the applicant’s behavior and conduct, which included threatening to do bodily harm to an officer, which caused him to question her stability.  The commander also removed the applicant from being the Officer in Charge for the M16A2 weapons qualification.  

On 20 December 1996, the applicant sent a letter of complaint to the Department of Defense, Office of the Inspector General (DODIG), alleging reprisal against her for making a series of protected communications to her Congressman, the Hunter Army Airfield (HAAF), GA, Office of the Inspector General and the Fort Stewart, GA, Office of the Inspector General.  The applicant claimed that she was improperly referred for a Mental Health Evaluation by her company commander; that she was administered a Memorandum of Reprimand and several counseling statements by her company commander and her first sergeant.  

On 19 March 1997, the applicant alleged that her commander in August 1995 sexually harassed her by referring to her and three other soldiers as a “broke dick female”.  After a thorough investigation was conducted, it was concluded that the applicant’s allegations were unsubstantiated.  The IG, Department of Defense reviewed the investigation and concluded that the applicant’s referral for a mental evaluation memorandum of reprimand, counseling statements, enrollment in the Army Weight Control Management Program and separation from the Army were not in reprisal for her protected communications.  The DOD IG closed the case and notified the applicant of the results of the investigation. 

In April 1997, the applicant failed the Department of the Army Promotion Board weigh-in.  At that time separation proceedings were initiated.  The commanding general of Fort Stewart authorized the separation.

On 18 June 1997, the applicant’s orthopedic surgeon wrote a medical statement in regard to the applicant’s medical condition.  It stated, in effect, that he was concerned about the applicant undergoing administrative separation proceedings for her weight problem; that her problem has been an ongoing issue for the last two years; that the applicant has significant medical problems which limited her ability to perform vigorous activity; that another doctor also recommended that the applicant not be entered in a weight program; that despite the recommendation, she was entered in the weight program which may have aggravated her physical condition.  He further stated that the applicant’s weight problem could be related to her foot and back problems.  For this reason he recommended delay in any further action until treatment for her conditions were completed.  He recommended that final disposition of the applicant’s case be deferred for a total of 12 months.

In June 1997, the applicant’s medical condition was assessed by a Physical Profile Evaluation Board (PPEB).  The PPEB was conducted at Dwight David Eisenhower Army Medical Center, Fort Gordon, Georgia.  The PPEB considered the applicant’s orthopedic condition and determined that she was fit for duty with physical limitations.  The board members that served on the PPEB were the Chief of Orthopedic Services, the Chief of Community Medicine Service and the Chief of Hand Surgery.  The senior medical officers did not recommend that the applicant be referred for physical disability processing.

On 24 July 1997, the Medical Corps Commander reviewed the applicant’s administrative elimination board proceedings and discussed her medical condition with the applicant’s Orthopedic Surgeon.  It was determined at that time that the applicant did not have an underlying medical condition which was responsible for her being overweight.  He further stated that the applicant was not undergoing medical board proceedings and was qualified medically for separation.

The commander notified the applicant that he was initiating discharge proceedings under the provisions of Army Regulation 635-200, chapter 18, for failing to meet body fat standards.  The commander recommended that the applicant be given an honorable discharge.  The applicant was advised by legal counsel of the basis for the contemplated separation action and the rights available to her.  The commanding general approved the recommendation and directed the issuance of an honorable discharge.

The facts and circumstances pertaining to the final processing of the applicant’s discharge are not on file.  The Certificate of Release or Discharge, DD Form 214, indicates that the applicant was discharged in pay grade E-7 under the provisions of Army Regulations 635-200, chapter 18, for weight control failure.  She had completed 17 years, 7 months and 17 days of creditable active service.  She was awarded the Army Commendation Medal (3rd award), the Army Achievement Medal (3rd award), the Good Conduct Medal (5th award) and the National Defense Service Medal. 

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 18 contains the policy and outlines the procedures for separating soldiers who fail to meet screening table weight and body fat standards, and provides, in pertinent part, that commanders will separate a member under this chapter, if applicable. 

Army Regulation 635-40 is the current regulation that 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 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.  At the time of the applicant’s separation, Army Regulation 40-501 contained this definition.

Army Regulation 40-501, Standards of Medical Fitness, in effect at the time provided that members who were believed to be unfit because of physical disability, or who had one of the conditions listed in Chapter 3, Retention Medical Fitness Standards, would be processed to determine their eligibility for physical disability benefits.

DOD Directive Number 7050.6, dated 20 November 1989 implemented the Military Whistleblower Protection provisions (Title 10, U.S. Code, section 1034). This directive was reissued on 3 September 1992.  It indicates that it is DOD policy that no person shall restrict a member of the Armed Forces from lawfully communicating with a member of congress, an IG, or a member of a DOD audit, inspection, investigation, or law enforcement organization; that members of the Armed Forces shall be free from reprisal for making or preparing to make lawful communications to a member of congress, an IG, or a member of a DOD audit, inspection, investigation, or law enforcement organization; and that no employee or member of the Armed Forces may take or threaten to take an unfavorable personnel action, or withhold or threaten to withhold a favorable personnel action, in reprisal against any member of the Armed Forces for making or preparing a lawful communication to a member of congress, an IG, or a member of a DOD audit, inspection, investigation, or law enforcement organization.  (Note:  This directive was reissued again on 12 August 1995 to include specific other complaints as protected communications and expand the scope of persons and activities to whom a protected communication could be made.)      

Army Regulation 20-1 provides, in pertinent part, that anyone (military, DA Civilian, family member, or private citizen) has the right to register complaints orally in writing with an Army IG concerning matters of DA interest.  In exercising this right, the complainant will be free from restraint, coercion, discrimination, harassment, or reprimand.  Soldiers will be encouraged to discuss their problems or grievances first with their commanding officers, as provided by Army Regulation 600-20.  However, persons desiring to submit a complaint directly to an IG at any level, but who do not wish to discuss the matter with their commanding officer or other members of the chain of command, will be permitted to do so.  Any type of disciplinary or other adverse action taken against an individual for registering a complaint, except when fraudulently made is prohibited.

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 Board supports the DOD policy of unrestricted communication with Congress, the IG’s and various Government investigators, etc, as well as the protection from reprisal against those who make or prepare to make such communications.  When such reprisals occur, they constitute an injustice of the sort the Board was created to correct. 

2.  The applicant believes that she should have been considered for a medical retirement in lieu of discharge.  The Board understands why the applicant has difficulty reconciling the conflicting medical assessments of the different orthopedic specialists.  After an extensive review of her medical records, medical authorities determined that her medical condition did not warrant medical board processing.  The applicant’s medical condition was not due to any underlying medical disorders, which precluded her from meeting the Army’s weight standards.  No medical evidence has been presented by the applicant to demonstrate an injustice or an error in her discharge proceedings. 

3.  It is the opinion of this Board that the applicant was given every opportunity to comply with the Army’s Weight Control Program.  In April 1997, after being on the Army’s weight control program for over 1 year, she failed the Department of the Army Promotion Board weigh-in and at that time separation, proceedings were initiated.  The Commanding General authorized the separation.  The applicant’s allegation in regard to manipulation of her body fat measurements was unproven.  The Board reviewed the Body Fat Work Forms, which indicated that different people at different times measured the applicant for body fat measurements.  The Board finds that the applicant’s contention that everyone who measured her body fat conspired to manipulate the taping process is both unsubstantiated and incredible.  

4.  The Board has reviewed the IG investigation, the review of the DODIG, the EO investigation, the documentation submitted by the applicant, and her available military records.  Based on the evidence of record and the DODIG investigation the Board is convinced that the applicant’s medical condition was appropriately evaluated and she was properly discharge under the appropriate chapter.  Also, there is no evidence in the applicant’s available records to support her many allegations of reprisals.  The Board concurs with the findings of the IG investigation and the DODIG review.

5.  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.
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

__sac___  __ew____  __svw___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999018180	
SUFFIX		
RECON		
DATE BOARDED	19990819	
TYPE OF DISCHARGE	HD,	
DATE OF DISCHARGE	19970897	
DISCHARGE AUTHORITY	AR635-200, chapter 18 .  .  .  .  .  	
DISCHARGE REASON	A13.00 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.1300	
2.	144.3100	
3.		
4.		
5.		
6.