MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  .   

	BOARD DATE:  8 September 1999                              
	DOCKET NUMBER:   AR1999018726

	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	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Frank K. McCoy		Chairperson	
	Ms. Karen L. Wolff 		Member	
	Mr. Orville W. Troesch, Jr.		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, physical disability retirement.  

APPLICANT STATES:  In November 1993 he was diagnosed with an osteoid osteoma and given a physical profile and told to avoid any strenuous activity.  Consequently, he began to get out of shape, was tape tested and failed.  Informed of the decision to perform surgery, he got back into shape before the surgery, and passed the tape test prior to the operation.  After the operation, and after 30 days of convalescent leave, and within a few weeks after his return to duty, he was randomly tested again, failed, and processed for discharge.  He is working with a senator and the DAV but still has not completed his disability.  He does not want disability but needs constant medical attention for his pain.  The surgeon made mistakes during the operation and he is incapacitated.  He has arthritis at the age of 23 and has difficulty performing the simplest of tasks.

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

The applicant enlisted in the Army for 2 years and 22 weeks on                             2 September 1992, completed training, and in February 1993 was assigned to a support battalion at Fort Lewis, Washington. 

On 3 November 1993 the applicant was notified that he was being placed on the weight control program.  He was fit for participation in that program and the cause of his overweight condition was not due to a medical condition.  On         15 March 1994 he was in compliance with the Army’s weight standards and was removed from the weight control program.

On 2 May 1994 the applicant was weighed and measured and found to exceed the body fat content prescribed by regulation.  He was counseled concerning his failure to meet standards and informed that administrative proceedings would be initiated to separate him from the Army.  On 5 May the applicant’s commanding officer notified him that because he exceeded the body fat standards he could be separated from the Army.  On 15 June 1994 he was found to be fit for participation in a weight control program.  The cause of his overweight condition was not due to a medical condition.

An 18 May 1994 report of medical examination indicates that the applicant was medically qualified for separation with a physical profile serial of 1 1 1 1 1 1.  In the report of medical history he furnished for the examination the applicant stated that he was in fair health.  That report indicated that he had surgery on               11 March 1994 for his osteoid osteoma. 

On 8 June 1994 the applicant’s commanding officer initiated action to discharge the applicant from the Army under the provisions of Army Regulation 635-200, chapter 18, because of his failure to maintain weight standards after having once been removed from a weight control program.  The applicant consulted with counsel, and stated that he understood the basis for the contemplated action, its effects, and the rights available to him.  He declined to submit a statement in his own behalf. 

The applicant’s commanding officer recommended to the separation authority that the applicant be discharged from the Army.  On 13 June 1994 the separation authority approved the recommendation and directed that the applicant receive an honorable characterization of service and that he be transferred to the Individual Ready Reserve.  The applicant was released from active duty on        22 June 1994.  He had 1 year, 9 months, and 21 days of service.  

Army Regulation 600-9 establishes policies and procedures for the implementation of the Army weight control program.  Paragraph 21 of that regulation outlines the procedures to follow when a soldier’s body weight exceeds the screening table contained in that regulation, and whose body fat composition exceeds the maximum allowable percent body fat standards. 

That paragraph states in pertinent part that a soldier will be entered in a weight control program if classified as overweight and health care personnel discover no underlying or associated disease as the cause of the condition.  The required weight loss goal of 3 to 8 pounds per month is considered a safely attainable goal to enable soldiers to lose excess body fat and meet the body fat standards.  Weigh-ins will be made by unit personnel monthly.  Commanders will remove individuals administratively from a weight control program as soon as the body fat standard is achieved.

Following removal from a weight control program, if it is determined that an individual exceeds the screening table weight and the body fat standard within    12 months from the date of the previous removal from the program and no underlying or associated disease process is found as the cause of the condition, the individual will be subject to separation under the provision of AR 635-200.

Army Regulation 635-200 provides for the discharge of enlisted soldiers from the Army.  Chapter 18 states in pertinent part that initiation of separation proceedings is required for soldiers who fail to meet screening table weight and body fat standards during the 12-month period following removal from the weight control program, provided no medical condition exists.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.
Army Regulation 635-40, paragraph 3-2b, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties 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.

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 applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  

2.  Service medical records do not indicate any medical condition incurred while entitled to receive basic pay which was so severe as to render the applicant medically unfit for retention on active duty.  At the time of the separation physical examination, competent medical authority determined that the applicant was then medically fit for retention or appropriate separation.  Accordingly, the applicant was separated from active duty for reasons other than physical disability. 

3.  Furthermore, the applicant's continued performance of duty raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his separation.

4.  The applicant did not have any medically unfitting disability which required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation.
 
5.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

6.  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.

7.  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

___fkm __  ___klw __  ___owt__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999018726	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990908	
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.   110.00		
3.		
4.		
5.		
6.