PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:             15 December 1999 
	DOCKET NUMBER:     AR1999022238

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

	Mr. Loren G. Harrell		Director	
	Ms. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Mr. Thomas N. Kuhn		Chairperson	
	Ms. Elizabeth Buchanon 		Member	
	Mr. Mark K. Manning		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests correction of his DD Form 214 to show award of the Army Commendation Medal (ARCOM) and the second award of the Noncommissioned Officer (NCO)  Professional Development Ribbon (correctly known as the NCO Professional Development Ribbon (2)).  He requests that item 11 (Primary Specialty) be corrected to show “76C20 B5 EQUIP REC & PTS 
4 YRS 0 MOS” instead of “76C20 B5 EQUIP REC & PTS 9 YRS 0 MOS”.  The applicant also requests, in effect, that his honorable discharge be changed to medical disability based on a rating for service connected disability by the Veterans Administration (VA).

3.  The applicant states, in effect, that he was awarded the ARCOM in 1992 and the NCO Professional Development Ribbon (2) in 1991.  He contends that item 11 (Primary Specialty) on his DD Form 214 has a typo and that the “9 YRS” should be “4 YRS”, otherwise he should be credited with 14 years of service.  He goes on to state that he was receiving medical attention for over 2 years for back and knee problems prior to his discharge.  He believes the back and knee problems were the reason he could not maintain height and weight standards which led to his discharge.  He contends that he requested to appear before a Medical Review Board (MRB) to receive the appropriate discharge he was eligible for due to his medical difficulties and this request was denied by his command.  He was discharged on a chapter 18 (Weight Control Failure) and has had to live with the stereotype of being too fat to be a soldier.  He contacted the VA and was awarded four service related disabilities, with one earning 10%.  He further states that since the VA awarded him with four service related disabilities, three of which he feels contributed to not being able to maintain or reduce his weight to the Army standards, he requests that he be awarded the status of discharge that is in line with his VA awarded disabilities.  He also contends that he was given half separation pay at the time of his discharge and if he had been awarded a medical disability discharge he would have received full separation pay.  He believes that if he had been able to receive a MRB, he would have received an honorable discharge due to medical disability.  In addition, he believes that he had the possibility of a 10-30% award for compensation.  He could have used the compensation award as veterans preference points while applying for federal employment at the time of his discharge.  This could have given him a better chance to compete for a civil service position.  In support of his application, he submits the recommendation for award of the ARCOM and the ARCOM award certificate; his Service School Academic Evaluation Report for the Basic Noncommissioned Officer Course; a copy of his DD Form 214; and VA documentation which shows he was granted service-connected disability for retropatellar pain syndrome with ligament laxity (right knee) 10% and
service-connected compensation for retropatellar pain syndrome (left knee), chronic low back pain and chronic rhinitis.         

4.  The applicant’s military records show that he enlisted on 10 September 1986 for a period of 4 years.  He trained as an equipment records and parts specialist and served in Korea from 23 February 1987 to 24 February 1988.  He reenlisted on 11 May 1990 and trained as a software analyst.  

5.  On 9 May 1994 the applicant was counseled and entered into the Weight Control Program.  He failed to maintain a body fat standard of 24% when evaluated on 29 April 1994, 6 May 1994, 9 May 1994, 21 June 1994, 1 July 1994, 5 August 1994, 2 September 1994, 14 October 1994, 4 November 1994, 30 November 1994, 6 January 1995, 3 February 1995, 10 March 1995, 28 April 1995 and 5 June 1995.    

6.  On 28 July 1995 the applicant underwent a medical examination and was found qualified for separation with a physical profile of 111111.  Item
8 (Statement of Examinee’s Present Health and Medications Currently Used) of the Standard 93 (Report of Medical History), dated 16 August 1995, shows “I am in good health.”

7.  On 26 September 1995 the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 18, for failure to meet body fat standards.  The unit commander recommended separation with an honorable discharge and based his recommendation for separation on the applicant’s failure to maintain satisfactory progress in the weight control program after six months.  On 2 October 1995, after consulting with counsel, the applicant waived consideration of his case by an administrative separation board, waived representation by counsel and elected not to submit a statement in his own behalf. 

8.  On 23 October 1995 the appropriate authority approved the recommendation for separation and directed that the applicant’s service be characterized as Honorable.

9.  Accordingly, on 23 February 1996, the applicant was honorably discharged under the provisions of Army Regulation 635-200, chapter 18, for weight control failure.

10.  The applicant’s DD Form 214 does not show the ARCOM or the NCO Professional Development Ribbon (2) as authorized awards.  Item 11 (Primary Specialty) of the DD Form 214 shows “76C20 B5 EQUIP REC & PTS SP 9 YRS 0 MOS”.   

11.  The applicant provided an award certificate which shows he was awarded the ARCOM for the period 17 December 1990 to 10 August 1992.

12.  The applicant provided a copy of his Service School Academic Evaluation Report, dated 13 August 1991, which shows he attended the Basic NCO Course from 28 May 1991 through 13 August 1991 and successfully completed this course.  

13.  The applicant’s records show that he was awarded military occupational specialty (MOS) 76C (equipment records & parts specialist) in February 1987 upon his completion of advanced individual training.  His records show he was awarded primary MOS 74F (software analyst) and secondary MOS 
76C (equipment records & parts specialist) on 18 December 1990.  The primary MOS 76C was withdrawn. 

14.  The applicant filed a claim with the VA for service connected disability for chronic low back strain, retropatellar pain syndrome with ligament laxity (left and right knees), bilateral foot condition, left and right elbow conditions, bilateral shoulder condition, chronic bilateral wrist condition and arthritis of the hands, chronic rhinitis, and obesity.  In a May 1996 rating decision, the VA granted service connection for chronic low back strain at the 0 percent rate, retropatellar pain syndrome with ligament laxity (right knee) at the 10 percent rate, retropatellar pain syndrome (left knee) at the 0 percent rate, and chronic rhinitis at the 0 percent rate.    

15.  Interim change 2 to Army Regulation 635-200 (Enlisted Personnel Separations) adds chapter 18 (Failure to Meet Body Fat Standards) to this regulation.  In pertinent part, chapter 18 provides that soldiers who fail to meet the body fat standards set forth in Army Regulation 600-9 shall be separated under this provision when it the sole basis for separation.  The regulation provides that the soldier must be given a reasonable opportunity to comply with and meet the body fat standards.  The regulation also provides that if no medical condition exists and if the individual fails to make satisfactory progress in the program after a period of six months, then initiation of separation or imposition of a bar to reenlistment is required.  The service of soldiers separated under this chapter will be characterized as honorable.

16.  Army Regulation 600-8-22 (Military Awards) shows that the Noncommissioned Officer (NCO) Professional Development Ribbon was established by the Secretary of the Army on April 1981.  It is awarded to members of Active Army, Army National Guard, and US Army Reserve soldiers for successful completion of designated NCO professional development courses. The regulation, in pertinent part, states that completion of the Basic NCO Course qualifies for the NCO Professional Development Ribbon (2). 

17.  Army Regulation 635-5 established the standardized policy for preparing and distributing the DD Form 214.  In pertinent part it states that the primary MOS and all additional MOS served for a period of one year or more, during soldier’s continuous active military service will be entered in item 11 (Primary Specialty).

18.  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.

19.  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. 

20.  Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, provides the standards for medical fitness for retention and separation, including retirement.

21.  Army Regulation 40-501, chapter 7, physical profiling, provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  Numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.  Numerical designator "4" indicates that an individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited.  The numerical designator "4" does not necessarily mean that the individual is unfit because of physical disability as defined in Army Regulation 635-40.

CONCLUSIONS:

1.  The applicant was awarded the ARCOM; therefore, he is entitled to correction of his military records to show this award.

2.  The applicant completed the Basic NCO Course on 13 August 1991; therefore, he is entitled to correction of his military records to show award of the NCO Professional Development Ribbon (2). 

3.  The Board noted the applicant’s contention that item 11 (Primary Specialty) on his DD Form 214 has a typo and “9 YRS” should be “4 YRS”, otherwise he should be credited with 14 years of service.  However, evidence of record shows the applicant was awarded and held MOS 76C (primary and secondary) from February 1987 until he was discharged on 23 February 1996, for a total of
9 years.  Therefore, item 11 (Primary Specialty) of his DD Form 214 is correct as currently constituted.

4.  The applicant was on active duty from 10 September 1986 to 23 February 1996.  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 separation, a physical examination was conducted and competent medical authorities determined that he was then medically fit for retention or appropriate separation with a physical profile of 111111.  Accordingly, he was separated from active duty for reasons other than physical disability.

5.  Since the applicant’s medical condition was not medically unfitting for retention at the time in accordance with Army Regulation 40-501, there was no basis for medical retirement or separation.

6.  An award of a VA rating does not establish entitlement to medical retirement or separation from the Army.  Operating under its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service (“service-connected”) and affects the individual’s civilian employability.  Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

7.  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.

8.  In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records, but only as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was awarded the ARCOM and NCO Professional Development Ribbon (2).

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

TNK____  EB______  MKM____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Thomas N. Kuhn________
		        CHAIRPERSON

INDEX

CASE ID	AR1999022238	
SUFFIX		
RECON		
DATE BOARDED	19991215	
TYPE OF DISCHARGE	(HD)	
DATE OF DISCHARGE	19960223	
DISCHARGE AUTHORITY	AR 635-200 Chapter 18	
DISCHARGE REASON	Weight Control Failure	
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	107.0020	
2.	107.0077	
3.	100.0500	
4.	144.3100	
5.		
6.