MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           31 May 2000
	DOCKET NUMBER:   AR1999029084

	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. Carl W. S. Chun
Mr. David H. Keller		Director
Analyst	

  The following members, a quorum, were present:

	Mr. James E. Vick		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. James P. Infante		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 a motor vehicle accident on 5 December 1993 severely aggravated a pre-existing back condition.  Because of this, she was unable to exercise effectively to lose weight and remained on temporary physical profile for 7 months.  A fitness for duty evaluation was never completed on her behalf even though her doctor ordered it on 13 June 1994.  She was discharged on 2 August 1994 while still on a restricted physical profile which did not expire until 19 August 1994.  She was continually under the care of a physician for her back injury up until the day she was discharged, and is still under a physician’s care for this injury.  Her condition has worsened since her discharge.  In support of her request, the applicant submits extracts from her military health records, her DD Form 214 (Certificate of Discharge from Active Duty), and a VA rating decision.

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

With 6 years prior National Guard and US Army Reserve service, she enlisted on 30 November 1990.  Her initial active duty assignment after training was at Fort Ord, California.  In October 1992, she was transferred to Korea.  Following her overseas tour, she was reassigned to Fort Lewis, Washington.

The applicant was placed in a weight control program in May 1993.  Medical records indicate that she was involved in an automobile accident on 5 December 1993 and received a series of temporary medical profiles through August 1994 for lower back pain resulting from lumbar strain, with each profile outlining the extent to which she could safely exercise.  There is no medical evidence of any other underlying medical condition that would result in an inability to maintain Army weight control standards.

A 12 April 1994 report of medical examination indicates that the applicant was medically qualified for separation with a physical profile of 1 1 1 1 1 1, indicating no physical or mental limitations for duty.  In her Report of Medical History provided for the examination, the applicant stated that she was in “fair health, with chronic reoccurring back pain.”  A report of mental status evaluation determined that she was mentally responsible, able to distinguish right from wrong and adhere to the right, that she had the mental capacity to understand and participate in board proceedings, and she met the medical standards for retention in the Army.

On 24 June 1994, the applicant’s commander recommended she be discharged for failure to meet Army body composition/weight control standards under the provisions of Army Regulation 635-200, chapter 18.  The applicant consulted with counsel and waived consideration by a board of officers.  She declined to submit 

a statement in her own behalf.  On 19 July 1994, the separation authority approved the recommendation and directed the applicant be issued an Honorable Discharge Certificate.

The applicant was discharged on 2 August 1994 with 4 years and 24 days of active creditable service.

A VA rating decision shows that the applicant was awarded a 20 percent rating by that agency (later upgraded to 40 percent) for low back strain with degenerative changes.

Army Regulation (AR) 600-9 outlines the policy on the Army Weight Control Program.  The regulation provides, in pertinent part, that soldiers who are entered into a weight control program and have not made satisfactory progress after 6 months will be considered for separation from the service provided health care personnel determine that no underlying or associated disease process is found to cause the overweight condition.

Army Regulation 635-200 sets for the basic authority for the separation of enlisted personnel.  Chapter 18 of that regulation provides that soldiers who fail to meet body composition/weight control standards set forth in AR 600-9 may be separated when such condition is the sole basis for separation.  The service of soldiers separated under this provision will be characterized as honorable.

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 or her office, rank, grade or rating because of disability incurred while entitled to basic pay.

Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, paragraph 3-1, provides that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating.

Paragraph 3-2b(1) of the regulation provides 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 reasonably perform because of a physical disability incurred or aggravated in service.

Paragraph 3-2b(2) further provides that when a member is being separated by reason other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit. This presumption can be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time 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.

Title 38, United States Code, sections 310 and 331, permits the VA to provide treatment and to award compensation for disabilities which were incurred in or aggravated by active military service.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and it is concluded:

1.  The applicant’s contention that her physical profile precluded her from maintaining weight standards is not credible.  Each profile issued to her from January 1994 until her discharge specified the extent to which she could safely exercise.  The applicant obviously had a weight problem prior to her automobile accident in December 1993, since she was initially placed in a weight control program in May 1993 for not meeting Army weight standards.

2.  The applicant was provided a complete separation physical examination on 
12 April 1994 and was found to be medically qualified for separation.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations, with no indication of procedural errors which would tend to jeopardize her rights.  The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

4.  The applicant’s military service was not interrupted by physical disability.  Notwithstanding the presence, or possible presence, of various medical conditions, there is no evidence of record, nor has the applicant provided sufficient evidence, which would indicate that she suffered from any medical condition of such severity that she was rendered unable to reasonably perform the duties of her office, rank, grade or rating.

5.  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 Army purposes.

6.  An award of a VA rating does not establish entitlement to medical retirement or separation from the Army.  Operating under different law and its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military service, 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.

7.  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

__jev___  ___sk___  ___jpi____  DENY APPLICATION

    Carl W. S. Chun
    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR1999029084	
SUFFIX		
RECON		
DATE BOARDED	20000531	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	145.00	
2.		
3.		
4.		
5.		
6.