MEMORANDUM OF CONSIDERATION

	IN THE CASE OF          

	BOARD DATE:             29 July 1999     
	DOCKET NUMBER:   AR1999020814

	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:

	Mr. Charles H. Loundermon		Chairperson	
	Ms. Shirley L. Powell		Member	
	Mr. Curtis L. Greenway		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.

APPLICANT STATES:  That his medical problems were the basis of his discharge and not his weight.  He contends that problems with his left ankle, his bladder and the third finger on his left hand contributed to his weight gain and as a result he should have been medically retired rather than separated because of his weight.  He submits no evidence in support of his request.

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

He entered active duty on 3 February 1993 after more than 6 years of service with the Army Reserve.

In May 1994 the applicant was initially entered in a weight control program when his weight (203) exceeded the Army’s screening table by more than 30 pounds and his percentage of body fat (26.09) exceeded the body fat standard by more than 4 percent.  Evaluation by medical authorities determined that he medically cleared for participation in a weight reduction program.

By February 1995, after monthly counseling, the applicant was removed from the weight control program when his percentage of body fat declined to 21.74 percent.

In December 1995 the applicant was again determined not to be in compliance with the Army’s weight standards.  On 19 December 1995 his weight was 203 pounds and his percentage of body fat was measured at 27.01 percent.

The applicant was notified that his reentry into the weight control program within 12 months of his initial removal from the program was a basis for involuntary separation.  The applicant was so notified on 20 December 1995.  In a statement to his commander the applicant noted that he had been unable to participate in an exercise program for the previous 5 months as a result of bladder surgery.  A statement from the applicant’s physician, however, indicated that the applicant’s “medical problem” did not exempt him from complying with the Army’s weight standards.

As such in February 1996 the applicant was notified that he was being recommended for involuntary separation under the provisions of Army Regulation 635-200, chapter 18.  The applicant acknowledged receipt of the proposed separation, consulted with counsel and waived his attendant rights.

The recommendation was approved and on 22 April 1996 the applicant was honorably discharged from the Army.

Although the applicant did not provide evidence that he received a disability rating from the VA subsequent to his separation, he did note in his application that evidence to support his contentions were contained in VA documents.

Army Regulation 635-200 provides that soldiers who fail to meet the body composition/weight control standards set forth in Army Regulation 600-9 may be separated when such condition is the sole basis for separation.

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.

Army Regulation 635-40 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 they can no longer continue to reasonable perform because of a physical disability incurred or aggravated in service.  When a solider 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.  The presumption of fitness may be overcome if the evidence establishes that the soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of disability.  There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions.  The presumption of fitness may also be overcome by an acute, grave illness or injury or other significant deterioration of the soldier’s physical condition occurred immediately prior to, or coincident with processing for separation or retirement for reasons other than physical disability and which rendered the soldier unfit for further duty. 

Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own 

policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.  Furthermore, unlike the Army the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

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.  Although the former service member may have been released from active duty as a result of failing to meeting the Army’s weight control standards the separation was administrative in nature.  His continued performance of duty, in spite of his weight, until his separation from active duty in February 1996 raised a presumption of fitness which the applicant has not overcome by evidence of any unfitting, acute, grave illness of injury concomitant with her spouse’s separation.

2.  The evidence of record indicates the former service member did not have any medically unfitting disability, which required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation.

3.  Although there was no evidence confirming the applicant received a disability rating from the VA subsequent to his separation from active duty, the Board notes that it was implied by comments on the applicant’s application to the Board.  However, the Board notes that a rating action by the VA does not necessarily demonstrate any error or injustice by the Army.  The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  Any rating action by the VA does not compel the Army to modify its reason or authority for separation.

4.  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.

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

___chl__  __slp______  ___clg__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999020814	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990729	
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.