PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           1 September 1999                   
	DOCKET NUMBER:   AR1999027963

	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	
	Mr. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Stanley Kelley		Chairperson	
	Mr. James E. Anderholm		Member	
	Mr. Kenneth L. Wright		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 physical disability retirement. 

3.  The applicant states that he had various profiles for muscular skeletal problems and was unable to do physical training; consequently, he gained weight and separated after 17 years of honorable service without the benefit of a medical review board.  He was advised by counsel to waive a medical review board due to the short time remaining on his enlistment.  His request for early retirement was unfairly denied.  He had legitimate medical problems.  The applicant submits ten attachments with his request. 

4.  The applicant’s military records show that he enlisted in the Army for three years on 10 August 1977 and remained on continuous active duty until his discharge in 1994.  He was trained as a helicopter missile system repairman and a aircraft armament electrical systems repairman.  He completed numerous military schools, to include training in his specialties, and the basic NCO course (BNCOC).  The applicant was assigned to various locations throughout the world, to include Fort Eustis, Virginia, two tours of duty in Germany, Korea, Fort Campbell, Kentucky, and Fort Rucker, Alabama.  He has been awarded the Army Commendation Medal, two awards of the Army Achievement Medal, five awards of the Army Good Conduct Medal, and the Aircraft Crewman Badge, among others.  He was promoted to Staff Sergeant in 1986.  The applicant’s NCO evaluation reports show that he was an extremely capable NCO, who had no weight problem at least through January 1993.  His NCO report ending on that date did show that he had a medical profile in October of 1992 and did not take the physical training test.  He last passed that test in April of 1992.

5.  On 5 February 1993 the applicant was placed on the weight control program.  He exceeded the weight for height tables for 10 pounds, and the body fat standards by 2.14 percent.  On that same date the applicant’s commanding officer requested that a medical evaluation be conducted in view of the applicant’s medical profile.

6.  On 23 February 1993 the deputy commander for clinical services indicated that the applicant had labile hypertension problems, which he was currently evaluating, that he had a great deal of problems with left Achilles tendinitis which began in October 1992 and led him to be placed on various profiles, and that a below the knee cast was placed on his left lower extremity which he wore until just before Christmas of that year, which probably diminished his activity.  He was currently on another profile because of another type of tendinitis in his left foot.  The doctor stated that he did not have a medical problem as a cause of his excess weight gain, but more likely the problem was the result of his being on profiles for his musculoskeletal problems.

7.  The applicant was weighed and measured 12 times after he was placed on the weight control program, the last weigh in being on 23 June 1994.  His progress and lack thereof is well documented with a starting weight of              215 pounds and a body fat percentage of 2.14 percent in February 1993 to an ending weight of 211 pounds and 3.27 percent.  In between, he had various ups and downs, going as low as 208 pounds and .8 percent on the 13 October 1993 weigh in, but never quite meeting the required standard.

8.  As the applicant has indicated, however, he received numerous medical profiles both before and after he was placed on the weight control program -

•	20 Oct 92, ankle swollen with pain, tendon injury, physical training at own distance/pace for 10 days
•	4 Nov 92, achilles tendinitis, no running for 7 days, may bicycle
•	15 Jan 93, achilles tendinitis, no running or jumping
•	5 Feb 93, no running, jumping
•	26 Feb 93, no running/walking for one week
•	29 Mar 93, 10 days convalescent leave
•	7 Apr 93, no running, walk at own pace
•	16 May 93, run at own pace
•	1 Jun 93, status post ankle surgery, no running for 4 weeks
•	4 Oct 93, walk as alternate physical training, no running, pushups, situps
•	8 Nov 93, Permanent profile, no heavy lifting, walk or bicycle for alternate physical training
•	16 Dec 93, herniated disc, no running, jumping, prolonged standing
•	1 Jan 94, low back pain, no physical training
•	13 Jan 94, 30 days convalescent leave
•	16 Feb 94, back pain, no pushups, situps
•	5 Apr 94, walk at own pace, no situps

9.  On 14 October 1993 the aforementioned doctor stated that the applicant had been suffering from recurrent musculoskeletal problems, which had not involved the same area of the body, and appeared to be related to his physical training program.  Each time he had developed one of those problems, it resulted in his limited ability to perform physical training, causing him to gain weight.  The applicant was an individual who had to perform physical training in order to keep his weight down.    

10.  On 22 November 1993 the applicant requested early retirement as an exception to policy because of his medical condition.  His commanding officer recommended approval of that request, as did the aviation technical test center commander at Fort Rucker, who stated that the applicant was an outstanding NCO, whose technical expertise was unequaled by his peers.  He went on to say that recurrent medical problems and personal considerations were the primary factors resulting in the applicant’s request.  The applicant’s request was disapproved by the Total Army Personnel Command (PERSCOM) on                 15 February 1994.  That command indicated that exceptions to policy were approved only because of extreme hardship to the soldier or his family, and that the applicant’s request did not meet that criteria.  Because of the needs of the Army, it was not in the best interest to permit the soldier to retire at that time.  

11.  On 18 July 1994 the applicant’s commanding officer notified the applicant that he was initiating action to separate him under the provisions of Army Regulation 635-200, chapter 18, for failure to meet the Army body composition/weight control standards.  The applicant consulted with counsel and stated that he understood the basis for the contemplated action to separate him for unsatisfactory performance, its effects, of the rights available to him, and of any action taken by him in waiving his rights.  He waived consideration of his case by an administrative separation board.

12.  The applicant’s commanding officer recommended to the separation authority that the applicant be separated from the Army, stating that the applicant had failed to met the body composition/weight control standards, that he was given a reasonable opportunity to meet those standards, and that he had not been diagnosed by health care personnel as having a medical condition which would preclude him from participating in the weight control program.  He stated that the applicant had been counseled on several occasions, and that several individuals had made painstaking personal efforts to help the applicant.  On      26 July 1994 the separation authority approved the recommendation.

13.  The officer who recommended the applicant’s separation, and the separation authority, are those same officers who recommended approval on the applicant’s 22 November 1993 request for early retirement. 

14.  The applicant was discharged with an honorable characterization of service on 2 August 1994.  He had 16 years, 11 months, and 23 days of service.  He received $18,848.55 in half separation pay.

15.  In a 29 July 1994 letter to a member of congress the applicant stated that his ability to control his weight was diminished due to shin splints, achilles tendinitis, left ankle impingement, requiring surgery which took approximately 6 months to diagnose and treat.  His physical training time was limited or discontinued per doctor’s orders.  He then had chronic lower back pain, leading to a lengthy process of diagnosing and treating a herniated spinal disc which led to another surgery.  He is still experiencing chronic and acute lower back pain with nerve damage.  The applicant encloses copies of his physical fitness test scores showing his diminishing abilities.  The applicant stated that the doctor’s medical statement indicates that he was in a catch 22 position.  He stated that the Army had eliminated him from the Army because of an overweight condition which he had no control over because of his medical conditions.  He waived his right to an administrative separation board, knowing that if the board voted to retain him, he would still be separated (not allowed to reenlist) on his ETS and would lose benefits, i.e., money, that he would receive by being eliminated.

16.  In September 1994 the VA notified the applicant that it had granted his claim for service connected disability compensation, and that his combined evaluation was 20 percent.

17.  Army Regulation 635-200 provides for the separation of enlisted personnel.  Chapter 18 of that regulation states that soldiers who fail to meet the body fat standards set forth in Army Regulation 600-9 are subject to separtion when such condition is the sole basis for separation.  The service of soldiers separated will be characterized as honorable.

18.  The Total Army Personnel Command message number 93-223 provides eligibility requirements and application procedures for early retirement for regular Army enlisted soldiers under the FY94 early retirement program, and states, in pertinent part that the temporary early retirement authority will be used to retire members whose skills are excess to the Army’s short term and long term needs. Individuals approved for early retirement must depart active duty no later than    31 August 1994 but not earlier than the date they attain 15 years active federal service.  Soldiers must meet all eligibility requirements for retirement for length of service for 20-year retirement, except as modified by this message.  Soldiers must hold a primary MOS and grade with the minimum number of years active service as of 31 August 1994 or earlier as indicated for that grade and MOS as listed (NOTE:  The applicant’s MOS is not listed). 

20.  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 her 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.

21.  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.
CONCLUSIONS:

1.  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.

2.  The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Department of the Army purposes.

3.  The award of VA compensation does not mandate disability retirement or separation from the Army.  The VA, operating under its own policies and regulations, may make a determination that a medical condition warrants compensation.  The VA is not required to determine fitness for duty at the time of separation.  The Army must find a member physically unfit before she can be medically retired or separated.

4.  The VA 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, the applicant'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 her for VA benefits based on an evaluation by that agency.

5.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

6.  The applicant did not have any medically unfitting disability which required physical disability processing.   And she could not have been referred for disability processing.  Therefore, there is no basis for physical disability retirement or separation.
  
7.  The action taken to separate the applicant was proper and conducted in accordance with applicable regulations.  The applicant was informed of his rights, to include consideration of his case by an administrative separation board, which he waived.  His discharge for failure to meet the Army body composition/weight control standards was correct.  

8.  Nonetheless, the applicant had myriad medical problems, as evidenced by his record.  These problems, occurring before and after he was placed on the weight control program, assuredly restricted his physical activities, and resulted in numerous temporary medical profiles (and a permanent profile in November of 1993), in which medical authorities restricted his physical actions.  The deputy commander for clinical services stated on two occasions, that the applicant gained weight because he could not perform physical training.  The Board notes that the applicant was a more than capable NCO and that he apparently was physically fit from the time of his enlistment in 1977 until the onset of his medical problems in late 1992.    

9.  The applicant’s company commander and brigade commander both supported the applicant in his request for early retirement, attesting to his outstanding performance of duty, but stating that recurrent medical problems were one cause of his request.  He was turned down by PERSCOM, because of the needs of the Army, only to be involuntarily separated less than 6 months later.

10.  The Board is reluctant to question the decisions made by commanders in the field, and who are knowledgeable of all the facts and circumstances concerning a particular case.  However, in this instance, the Board believes that an exception should be made.  The applicant was a good soldier with almost 17 years of honest and faithful service, who could not lose the necessary weight and who also could not engage in activities to lose weight.  

11.  Consequently, the Board believes that the applicant’s discharge was unfair and unjust, and that that discharge should be revoked and declared null and void and of no force or effect. 

12.  And, the applicant should be retired from the Army under the provisions of the FY 94 early retirement program as authorized by PERSCOM message        93-223, effective 31 July 1994, with all due back pay and allowances.  The applicant should be afforded the opportunity to participate in the Survivor Benefit Plan. 

13.  The applicant should return to the Army the $18,848.55 half separation pay that he received in 1994.

14.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by:

     a.  revoking the applicant’s discharge of 2 August 1994, and showing that that discharge was null and void and of no force or effect;
   
     b.  transferring the applicant to the Retired Reserve under the provisions of the FY 94 early retirement program, as authorized by PERSCOM message       93-223, effective 31 July 1994, with all due back pay and allowances; 

     c.  affording the applicant the opportunity to participate in the Survivor Benefit Plan (SBP).  If a signed declination or election of reduced coverage is not submitted, the applicant will be automatically enrolled in the SBP with full coverage for the spouse.  The applicant should be advised to contact his retirement services officer at the nearest Army installation to facilitate a smooth transition to retired status; and,
  
     d.  requiring the applicant to reimburse the Army the $18,848.55 that he received in half separation pay in 1994. 
     
2.  That so much of the application as is in excess of the foregoing be denied 

BOARD VOTE:  

___sk___  ___jea__  __klw____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999027963	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990901	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1. 108.00		
2. 110.00		
3. 136.00		
4.		
5.		
6.