MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:           10 February 2000                  
	DOCKET NUMBER:   AR1999025449

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Van B. Cunningham		Chairperson	
	Mr. James P. Steuve		Member	
	Mr. Kenneth L. Wright		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:  That there was a medical reason for not being within the Army weight standards.  He was under a physician’s care at Walter Reed Army Medical Center (WRAMC) for a back problem and had a restrictive profile.  He had a medical problem but his records were not available.  He was seen by an Air Force physician, and found to have a medical condition which would interfere with his weight loss because he was unable to exercise for several months.  He was referred to an Army physician at WRAMC by his company commander, and after returning to his unit, was sent on TDY to Fort Knox without his medical records.  He is now awaiting results from VA regarding a disability claim, and is pending release from his civilian job for the same medical reasons.  In the rush to discharge him, key information was overlooked that he was not able to present.  The physician at WRAMC wanted to see him in six months, obviously believing that he had a condition requiring further medical care. 

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

The applicant enlisted in the Army Reserve in the delayed entry program (DEP) on 15 November 1978, was discharged from that program upon his enlistment in the Regular Army for 4 years on 24 August 1979.  He remained on continuous active duty until his discharge in 1986.  

On 6 March 1986 a physical evaluation board (PEB) determined that his medical condition of multiple arthralgias of the low back, right leg, and left knee, associated with complaints of photophobia, all without significant objective evidence, although mild, prevented the applicant from performing the full range of duties required of his grade (Sergeant), and MOS (91A2P, medical specialist), stated that he was physically unfit and recommended a combined rating of zero percent and that he be separated with severance pay.  The applicant concurred and he was discharged on 25 April 1986 for physical disability.  He received $15,052.80 in disability severance pay.  

The applicant reenlisted in the Army for 3 years on 16 April 1991.  He was discharged on 31 March 1992 because of physical disability with a 10 percent disability rating.  He received disability severance pay of $2,643.60.

The applicant enlisted in the Army Reserve for 6 years on 22 April 1994.  He entered on active duty in an Active Guard/Reserve (AGR) status on                   31 January 1996, and after attending a recruiter course was assigned to recruiting duty in Madison, Wisconsin, and after that to recruiting duty in Piqua, Ohio.

On 21 April 1997 the applicant’s company commander indicated that the applicant was overweight by 22 pounds and exceeded the body fat standards by 2.34 percent, and requested a medical evaluation be conducted.  The 74th Medical Operations Squadron at Wright Patterson Air Force Base found that the applicant was fit for participation in a weight control/physical fitness program, that he could exercise as indicated on his temporary profile, and that the cause of his overweight condition was not due to a medical condition.  His physical profile indicated that the applicant’s medical condition was anxiety.  His profile did not prevent him from any physical or functional activities.  The applicant’s commanding officer notified the applicant that he was placed in a weight control program.  The applicant indicated that he understood his responsibilities to achieve the body fat standards and to have his weight recorded periodically.

Body fat content worksheets for six months, from March 1997 through August of that year, show that the applicant was over the Army’s maximum body fat percentage for his age, height and weight.  The applicant was counseled on three occasions because of his overweight condition.

A 20 May 1997 report of medical examination conducted by Air Force medical personnel show that the applicant was medically qualified with a physical profile of 1 1 1 1 1 1.  An addendum to that report shows a possible gerd from 1996, manifested by chest pain with no diagnosis at that time, and followups recommended.  The applicant had stated he had stiffness and popping in his left knee.  

On 24 July 1997 the applicant was referred for civilian medical care with a provisional diagnosis of dysphagia.   A 3 September 1997 radiologic examination report indicated that the applicant was asymptomatic.  Findings indicated his condition compatible with feline esophagus which might be seen in reflux disease.  There was no evidence of schatzki’s ring.  

In a 26 August 1997 memorandum, the applicant’s company commander indicated that the applicant had been initially evaluated by Wright Patterson Air Force Base 74th Medical Operations Squadron on 21 April 1997 and it was determined that his overweight condition was not due to a medical condition and recommended that he be continued in the weight control program.  That official indicated that during the last weigh-in the applicant exceeded the weight tables for height by 23 pounds, and exceeded the body fat percentage by 1.52 percent. His company commander requested a medical reevaluation be conducted in view of initiation of separation action.  The medical evaluation indicated that the applicant was found fit for participation in a weight control program and that the cause of his overweight condition was not due to a medical condition.

The applicant received a temporary profile because of low back pain on               3 September 1997.

On 24 October 1997 the applicant’s commanding officer notified the applicant that he was initiating action to separate him for failure to meet body fat standards, in that he was placed on the Army body fat program on 21 April 1997 and had failed to make satisfactory progress.  He stated that he was recommending that the applicant receive an honorable discharge.

The applicant consulted with counsel and stated that he understood the basis of the contemplated action to separate him under the provisions of Army Regulation 635-200, chapter 18, for failure to meet body fat standards; its effects; the rights available to him and the effect of any action taken by him in waiving his rights.  He waived consideration of his case by an administrative separation board, and declined to submit statements in his own behalf.

The applicant’s commanding officer recommended to the separation authority that the applicant be separated because he failed to meet body fat standards in accordance with Army Regulation 600-9.  The separation authority approved the recommendation on 29 October 1997 and recommended that the applicant be issued an Honorable Discharge Certificate.  He was discharged on                       1 December 1997.

A 14 May 1998 medical report indicates that the applicant’s condition was diagnosed as mechanical back pain, possible disk herniation.  Followups indicate an MRI showed left foraminal L4-L5 disc prolapse.  The applicant continued to have pain and lumbar range of motion was restricted in all directions.  He was continued on medicine and physical therapy was prescribed.  A 13 July 1998 report showed that he was doing well, but continued to have pain in the center of his back as well as radicular symptoms down his left leg.  He wore a brace at work.

A 23 October 1998 radiologic consultation report indicates a stable appearance of a small left foraminal L4-5 disc prolapse.  An 11 November 1998 medical report indicates L5 radiculopathy without clear-cut neuro-imaging correlation.  On 11 November he underwent an L5 left selective nerve root block.  On                 25 November 1998 he underwent a lumbar epidural steroid injection.   

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.

After a period of dieting and/or exercise for 6 months, soldiers who have not made satisfactory progress and who still  exceed the screening table and body fat standards will be subject to separation from the service if no underlying or associated disease process is found to cause the overweight condition.

Army Regulation 635-200 provides for the separation of enlisted soldiers.  Chapter 18 states in pertinent part, that soldiers who fail to meet the body fat standards set forth in Army Regulation 600-9 shall be separated when such condition is the sole basis for separation.  Separation action may not be initiated until the soldier has been given a reasonable opportunity to comply with and meet the body fat standards.  If no medical condition exists, initiation of separation action is required for soldiers who do not make satisfactory progress in the program after a period of 6 months.

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 separation for failure to meet body fat standards was proper.  Medical personnel on two occasions indicated that the applicant did not have a medical condition which was the cause of his overweight condition; and that he could participate in a weight control program.  The applicant has provided no evidence to show otherwise.  He made no satisfactory progress, his commander initiated separation proceedings, and the applicant was advised of the reason for that action.  He consulted with counsel, waived his right to an administrative separation board, and declined to submit statements in his behalf.  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.  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. 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.

3.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

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

___jps___  ___klw__  ___vbc__  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999025449	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000210	
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. 177	108.00	
2.		
3.		
4.		
5.		
6.