MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           16 September 1999                   
	DOCKET NUMBER:   AR1999027235

	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. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Melinda M. Darby		Chairperson	
	Ms. Sherri V. Ward		Member	
	Mr. Van B. Cunningham		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APPLICANT REQUESTS:  That his discharge be withdrawn and he be reinstated to active duty.

APPLICANT STATES:  That the record does not support the administrative discharge in that the separation action exceeded applicable statutory authority, ignored pertinent procedural requirements and violated the minimum concepts of fairness.  He includes a copy of the memorandum vacating his suspension of separation as supporting documentation.  

COUNSEL CONTENDS:  Counsel makes no contention.

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

He enlisted in the Regular Army on 9 November 1988.  He was promoted to Sergeant, E-5 on 1 December 1993.  On 21 October 1994, he was assigned to the U. S. Army Medical Department Activity with duty in the Veterinary Section, Great Lakes Supply Point, Chicago, IL.

(His age group was 28 – 39 years old; his maximum allowable body fat was 24 percent.  His height was variously measured between 72.25 and 73 inches.  The maximum allowable weight for a male soldier 72 inches tall in this age group was 200 pounds; for a male soldier 73 inches tall, 205 pounds.)

While in-processing, the applicant was determined to have exceeded the screening table weight by 42 pounds and the body fat standards by 1.79 percent. A medical evaluation determined his overweight condition was not due to a medical condition.  On 25 October 1994, he was flagged and placed in a weight control program.

In November 1994, the applicant was determined to have met the body fat standards (23.96 percent) but it was later determined the tape measure had been stretched and after accounting for a calibrated tape his body fat was determined to have been 24.66 percent.  In January 1995, his weight was 245 pounds and his body fat 24.66 percent; in February 1995, his weight was 250 pounds and his body fat 24.11 percent; in March 1995, his weight was 246 pounds and his body fat 25.45 percent; and in April 1995, his weight was 235 pounds and his body fat 24.80 percent. 

A 9 May 1995 memorandum for record stated the November 1994 body fat worksheet was destroyed due to the discrepancy (did he or did he not meet the standards) and the applicant’s separation packet was halted.  He was informed his packet was not submitted for chapter action but that his weight would still be monitored and any future problems could result in separation.  

On 10 May 1995, the applicant was flagged again for failing to meet the body fat standards (on 24 March 1995).  On 16 May 1995, he was placed in the weight control program again.  

In May 1995, the applicant exceeded the screening table weight by 46 pounds and the body fat standards by 1.45 percent.

On 12 June 1995, the applicant acknowledged that he understood the company commander would initiate a mandatory bar to reenlistment or administrative separation for soldiers who do not make satisfactory progress in the weight control program after a 6-month period and for whom no medical reason exists to cause the overweight condition.  He understood if he exceeded the standards within 12 months of the previous removal from the program he would be subject to separation.  He further understood that after the 12th month but within 36 months from the date of the previous removal from the program he would be allowed 90 days to meet the standards.  If he did not meet the body fat standard after that period, he would be subject to separation.

In June 1995, his body fat was 25.45 percent.  In July 1995, his body fat was 21.94 percent and his weight 230 pounds.  He met the body fat standard and his flag was removed in August 1995.

In February 1996, the applicant failed the run portion of the Army Physical Fitness Test (APFT), his weight was 247 pounds and his body fat 24.11 percent. On 8 February 1996, he was provided nutrition and weight reduction counseling and it was determined his overweight condition was not due to a medical condition.

In April 1996, the applicant failed the run portion of the APFT again and his weight was 246 pounds and his body fat 24.06 percent.  On 9 April 1996, he was counseled that failure to reduce his body fat percentage to within his maximum allowable percentage within 3 months or failure to lose 3 to 8 pounds per month for 2 consecutive months could result in his being separated.  Because he exceeded the screening table weight and the body fat standards within 12 months from the date he was previously removed from the weight control program, he was re-enrolled in the program and again flagged effective 12 April 1996.

On 26 April 1996, the applicant’s weight was 243 pounds and his body fat 24.76 percent.   In May 1996, he passed the APFT, his weight was 240 pounds and his body fat 22.99 percent.  His flag was removed effective 10 May 1996.

On 11 June 1996, the applicant weighed 241 pounds and his body fat was 24.76 percent.  On 18 June 1996, the Commander, Allegheny Veterinary Service Support District notified him that, since this was his second time on the weight control program within 12 months, it was her intention to recommend him for separation.  (The notification was signed for the commander by a Sergeant First Class.)  In June 1996, medical personnel found him fit for participation in a weight control program, recommended his continuation in such a program, and determined his overweight condition was not due to a medical condition.  A hand-written note by an Army Nurse Corps captain on an endorsement dated 26 June 1996 indicated his body fat content was 22.15 percent but due to the discrepancy she could not sign off for full compliance with the regulation.  

In July 1996, the applicant’s weight was 231 pounds and his body fat 23.35 percent.  In August 1996, his weight was 235 pounds and body fat 22.62 percent. In September 1996, his weight was 232 pounds and his body fat 23.71 percent.  In October 1996, his weight was 241 pounds and his body fat 23.35 percent.

In November 1996, the applicant’s weight was 244 pounds and his body fat 25.45 percent.  He was officially enrolled in the weight control program effective  6 November 1996.  The Commander, Allegheny Veterinary Service Support District notified him it was his intention to recommend him for separation.  A flagging action was initiated 7 November 1996 for elimination.  

On 7 November 1996, the Commander, Allegheny Veterinary Service Support District notified the applicant he was initiating action to separate him for failure to meet body fat standards.  

After consulting with counsel, the applicant requested consideration of his case by an administrative board and personal appearance at such a board.  He completed a separation physical examination and was found qualified for separation.  

In December 1996, the applicant’s weight was 217 pounds and his body fat 19.93 percent.  In January 1997, his weight was 211 pounds and his body fat 19.93 percent.  In February 1997, his weight was 213 pounds and his body fat 20.33 percent.  

On 4 March 1997, the applicant was notified that a separation board would convene to hear his case on 20 March 1997.  The administrative separation board convened on that date.  Several witnesses, past or present supervisors, testified to his excellent soldier and duty performance qualities.  He testified in his own behalf.  His testimony read in part “…The difference was that my body fat was going down and at that time I was still doing lifting.…I want to get below the screen weight or not be taped at all, a safe measure of 10 to 15 pounds.  My screening weight is 200 pounds.  It will take me about two months to get down to 190…”

The board found that the allegation that the applicant failed to meet body fat standards by reentering a weight control program within a 12-month period with no underlying or associated disease process found as a cause of his overweight condition was supported by a preponderance of evidence.  The board recommended his separation but that the separation be suspended for a period of six months.  

On 26 March 1997, the Carlisle Barracks, Carlisle, PA Post Judge Advocate found the elimination board proceedings to be legally sufficient.  

The Commander, Dunham Army Health Clinic, Carlisle Barracks, Carlisle, PA approved the recommendation of the board and suspended the applicant’s separation to be automatically remitted if not vacated on or before 15 September 1997.

On 14 April 1997, the applicant received a copy of the board proceedings.

In April 1997, the applicant’s weight was 226 pounds and his body fat 19.43 percent.  In May 1997, his weight was 227 pounds and his body fat 22.99 percent. In June 1997, his weight was 229 pounds and his body fat 23.25 percent.  In July 1997, his weight was 228 pounds and his body fat was 22.99 percent.  

On 15 August 1997, the applicant’s weight was 236 pounds and his body fat 24.42 percent.  Upon being counseled for not meeting the body fat standards, he stated he believed the measurements were inaccurate and requested another taping, which apparently was denied.  On this date, his commander requested he be processed for separation for failing to meet body fat standards while in a suspended separation status.  

On 28 August 1997, the Commander, Allegheny Veterinary Service Support District notified the applicant of his consideration to vacate the suspended administrative separation and gave him 3 duty days to consult with counsel and submit a rebuttal.  The applicant acknowledged receipt of the notification on      28 August 1997.  He requested that such consideration be held in abeyance until he could consult with counsel on 4 September 1997.  Counsel later requested an extension until close of business on 7 September 1997.

In his rebuttal, the applicant provided a body fat content worksheet dated           18 August 1997, performed by the First Sergeant and Master Fitness Trainer of Headquarters and Headquarters Company, U. S. Military Entrance Processing Command (whom he stated were the primary body fat tapers for the command), that showed his weight as 226 pounds and his body fat as 20.62 percent.  He stated that, after he was counseled on 15 August 1997, he did physical training with Sergeant ____ as usual.  He immediately weighed in at the gym and the scales read 226 pounds.  He provided six statements from unit personnel who had stated they had noticed that the unit scale appeared to be broken or uncalibrated in February 1997.  He requested that the command should not vacate the suspension based on one erroneous measurement and weight by Sergeant First Class ______, who previously failed to calibrate the tape correctly.

On 10 September 1997, the Commander, U. S. Army Veterinary Services, Allegheny Veterinary Service Support District, Carlisle Barracks, Carlisle, PA considered the memorandum and enclosures submitted by the applicant and vacated the suspended separation.

On 2 October 1992, the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 18 for weight control failure.  He had completed     8 years, 10 months and 24 days of creditable active service.

Army Regulation 600-9 establishes policies and procedures for the implementation of the Army Weight Control Program.  Each soldier is responsible for meeting the standards prescribed in the regulation.  Commanders and supervisors will implement the Army Weight Control Program, to include evaluation of the weight and military appearance of all soldiers under their jurisdiction, to include measuring body fat as prescribed in this regulation.  Overweight is defined as when a soldier’s percent of body fat exceeds the standard specified in the regulation.  Body fat composition will be determined for personnel whose body weight exceeds the screening table weight.  A soldier will be flagged and enrollment in a weight control program starts on the day the soldier is informed by the unit commander that he has been entered in a weight control program.  A medical evaluation will be accomplished when requested by the unit commander or when the soldier is being considered for separation due to failure to make satisfactory progress in a weight control program.  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.  

Army Regulation 600-9 also provides that commanders will remove soldiers from a weight control program as soon as the body fat standard is achieved and removal of the flagging action will be accomplished at that time.  If a soldier 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 medical reason is found as the cause of the condition, the individual will be subject to separation.  (Also if they do not meet the standards after the 12th month but within 36 months under the same condition.)  The commander will inform the soldier in writing that initiation of separation proceedings is being considered.  The soldier will immediately respond to the letter in writing.  The commander will consider the response and initiate separation action if no adequate explanation is provided.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 18 provides that soldiers who fail to meet the body fat standards set forth in Army Regulation 600-9 are subject to separation when such condition is the sole basis for separation.  Separation action may not be initiated until the solider has been given a reasonable opportunity to comply with and meet the body fat standards.  The commander will notify the soldier in writing that his separation has been recommended.  The soldier will be advised of the right to consult with counsel, to submit statements in his own behalf, to obtain copies of documents that support the proposed separation, and to a hearing before an administrative separation board if he has 6 or more years of total service.  A soldier will be notified in writing of the convening date of the board at least 15 days before the hearing.  The board will determine whether the allegation is supported by a preponderance of the evidence and will make a recommendation as to whether the soldier should be retained, separated, or separated but the separation suspended.  A recommendation as to suspension is not binding on the separation authority.  When a case has been referred to and action completed by the board, the board proceedings will be reviewed by a qualified officer fully cognizant of applicable regulations and policies to determine whether the action meets the requirements of this regulation.  The separation authority may approve the recommendation of the board or direct a more favorable outcome.  When the separation authority suspends an approved separation and the soldier fails to meet the appropriate standards of conduct and duty performance, the separation authority may advise the soldier in writing that vacation action is being considered and the reasons that warrant such consideration.  The soldier will be given 3 duty days to consult with counsel and submit a written statement in his behalf.  The commander taking the action will consider any information the soldier submits and may either vacate the suspension and execute the separation or continue to suspend the execution of the approved separation for the remainder of the probation period.

Army Regulation 600-200 provides that a commander in grade lieutenant colonel and above who has a judge advocate or legal advisor available is authorized to order separation under chapter 18 in those cases in which the notification procedures are used.

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.  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.

2.  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.

3.  The Board notes that the separation authority was not bound by the board’s recommendation to suspend his separation.  Part of the “appropriate standards” of the weight control program is to maintain a weight loss of 3 to 8 pounds a month to enable soldiers to lose excess body fat and meet the body fat standards.  By the minimum standards, the applicant should have lost 27 pounds between November 1996 and August 1997 (for a weight of 217 pounds by August 1997).  He never maintained this loss.  He came close in January and February 1997, when his weight reached 211 and 213 pounds, respectively.  Even the applicant maintains he weighed 226 pounds on 15 August 1997. 

4.  The Board concludes that the separation authority understood the applicant to have made an implied promise in his board testimony when he asserted “I want to get below the screen weight or not be taped at all, a safe measure of 10 to 15 pounds.  My screening weight is 200 pounds.  It will take me about two months to get down to 190…”  The Board further concludes the commander determined the applicant was not making the satisfactory progress in weight loss implicit in the granting of the 6-month suspension and that this weight gain, despite any temporary progress any tape measurements may have shown, would prevent him from meeting the body fat standards on a permanent basis and so exercised his right to vacate the suspension.

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

__mmd___  __svw___  __vbc___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999027235	
SUFFIX		
RECON		
DATE BOARDED	19990916	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19971002	
DISCHARGE AUTHORITY	AR 635-200, Ch 18	
DISCHARGE REASON	A04.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.03	
2.		
3.		
4.		
5.		
6.