MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           30 July 2002
	DOCKET NUMBER:   AR2002067233

	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		Director	
	Ms. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Ms. Karen A. Heinz		Member	
	Mr. Thomas Lanyi		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 separation at expiration term of service (ETS) be changed to a retirement and that he be paid for the leave he never sold back to the Government.

APPLICANT STATES:  The applicant defers to counsel.

COUNSEL CONTENDS:  That their initial filing was done in 1993.  That the applicant was honorably discharged on 12 November 1999 due to having received a bar to reenlistment for weight control failure.  Following his separation, the Department of Veterans Affairs (VA) granted him a 20 percent disability rating.  In addition, he had additional service-related disabilities, one of which, recurrent sprains of the right ankle, contributed significantly to his inability to successfully maintain a constant weight while in the Army.  This physical condition severely restricted what type of physical conditioning he was able to utilize as part of an effective weight reduction program.  The applicant was separated under the provisions of Army Regulation 635-200, chapter 5, paragraph 5-15.  His command either chose to ignore or simply failed to take into consideration the fact he was suffering from recurrent ankle sprains.  This regulation was inappropriately used in the separation process because it clearly states, “Soldiers who have been diagnosed by health care personnel as having a medical condition which precludes them from participating in a weight reduction program will not be separated under this paragraph.”  He also suffered from degenerative spurring L5-S1 and C5-7 and from asthma.  Comments from the Orthopedic Clinic dated 19 July 1991 clearly specifies that the applicant had been forced to contend with ankle pain for the last year and one-half and as a result had been in and out of casts during that entire time.  The applicant was originally entered into the weight loss program on 8 April 1988 when he exceeded the weight standard by 37 pounds.  He established a consistent rate of weight reduction and came off the weight loss program in April 1989.  

After the applicant was placed in the weight loss program for the third time, his commander informed him that a bar to reenlistment was going to be initiated.  In September 1990, the applicant was placed on a profile for his ankle condition which only allowed him to walk, bicycle, and swim.  The worsening condition of his ankle severely limited him from continuing to participate in a regular exercise program.  The applicant’s battalion commander recommended approval of the bar to reenlistment and commented, “…he should have reduced his food intake.  Instead, he either increased it or it remained unchanged and he gained 23 pounds.”  This comment clearly indicates that any decisions related to the applicant on this issue were strictly arbitrary.  In the applicant’s rebuttal to the bar to reenlistment, it is quite evident that he was completely committed to overcoming this bar but due to his injuries he was not able to successfully engage in a challenging physical fitness program.  The legal review of the bar to reenlistment determined it to be legally correct but it still raised some very important issues.  Why was the applicant not taken to a clinic and given a medical examination so a determination could be made as to whether or not he was suffering from some sort of medical condition?  Eventually dietary counseling was provided to him, but this did not occur until 14 March 1991.  After 15 March 1991, the applicant was required to weigh-in three times while he was in a cast.  The command did not take into consideration the extra weight for the cast and the numbers gave the appearance of being the applicant’s actual weight.  Major General P___ made a decision based on his own negative bias against the applicant as indicated by his statement, “SFC G___’ apathetic attitude towards the weight control program does not conform to the standards expected of today’s soldiers,” which had a “trickle down effect” throughout the rest of the applicant’s chain of command.  The applicant always passed the Army Physical Fitness Test.  That was not the action of someone with an apathetic attitude.  

During the drawdown, the military had early retirement authority for individuals who had 15 to 20 years of service.  After having served faithfully for 18 years, the applicant should be entitled to greater respect than the involuntary separation pay he received.  Equity requires that his record be given a thorough review in light of all the current policies regarding the force drawdown.

Additionally, the applicant’s record indicates that he is owed back pay for leave which was accrued but never sold back to the Government.  He was paid for     10 days accrued leave; however, his leave and earnings statement establishes that he had 62.5 days of accrued leave 12 days prior to separating.  

The applicant was separated unjustly and against procedural guidelines due to his physical limitations.  It is not readily apparent that the command followed the guidelines as established in Army Regulation 635-200, paragraph 1-15b, which states that final determination (for soldiers with more than 18 years of service) will be made by Headquarters, Department of the Army in Alexandria, VA.  The bar to reenlistment was approved by the Enlistment Eligibility Activity in St. Louis, MO.  These procedural errors indicate that full due process was not achieved.  

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

He initially served in the Regular Army from 22 October 1971 – 15 October 1974. His Report of Separation from Active Duty, DD Form 214, item 22 for this period of time shows that he was not paid for any accrued leave.  

The applicant reenlisted in the Regular Army on 7 December 1979.  He was promoted to Sergeant First Class, E-7 on 29 July 1985.  He last reenlisted on   12 November 1985 for 6 years at which time he had 12 years and 29 days of creditable active service.  The Defense Finance and Accounting Service – Indianapolis Center verified that the applicant cashed in 50 days of leave in November 1985 and was paid $2,570, less taxes, on a voucher dated               15 November 1985 for this accrued leave.

On or about 8 April 1988, the applicant was placed in the Army Weight Control Program after weighing in at 230 pounds (37 pounds over his maximum allowable weight) and exceeding his maximum allowable body fat composition by 7.47 percent.  He was taken off the program around April 1989.

On 20 June 1989, the applicant was placed back in the Army Weight Control Program for exceeding the body fat standard for the second time in less than    12 months.  He was informed that a medical evaluation would be accomplished by health care personnel to determine if he had a medical condition which inhibited him from losing weight.  He was taken off the program on 2 August 1989.  At that time he was counseled to see the dietician as soon as possible to help him remain off the program.  He was also advised that, if he failed to meet the body fat standards after this date, procedures to have him administratively discharged would begin immediately.  

On 6 September 1990, the applicant exceeded the body fat standard by 6.10 percent.  

On 10 September 1990, the applicant was seen by the Podiatry Clinic for a complaint of recurring right ankle inversion injury and instability.  The Podiatry Clinic noted that the prognosis was poor for the injury.  At that time, he was given a temporary profile and assignment limitations of an alternate exercise program for conditioning and weight control.  His profile prohibited running and jumping but allowed unlimited walking, unlimited bicycling, and unlimited swimming and recommended swimming, cycling, and the rowing machine for one hour two to three times a week.

On or about 14 September 1990, the applicant was placed in the Army Weight Control Program for the third time.  He was informed that a medical evaluation would be accomplished by health care personnel to determine if he had a medical condition which would inhibit him from losing weight.

On 2 October 1990, a bar to reenlistment on the applicant based upon his entering the Army Weight Control Program for the third time was initiated.  The applicant rebutted the bar to reenlistment.  He stated that in April 1990 he sustained a serious injury to his right ankle which resulted in his wearing a cast for about two and one half months.  He was then placed on a series of profiles which limited his physical activity.  His regimen of weight maintenance had been interrupted.  He had not anticipated an injury which would decrease his physical activity to such a degree that enabled such a drastic weight gain.  

On 24 October 1990, the applicant’s battalion commander recommended approval of the bar to reenlistment.  On 19 November 1990, the 32d Army Air Defense Command Office of the Staff Judge Advocate (SJA) noted that there was no legal objection to the imposition of the bar to reenlistment as Army Regulation 600-9 provides that personnel who exceed the screening table weight and the body fat standard for their age group will not be allowed to reenlist or extend their current enlistment.  The SJA wondered why the chain of command did not initiate separation action in the applicant’s case because such action should have been initiated, assuming there was no underlying medical condition, when he failed to make satisfactory progress within 6 months after having been entered in the program the first time or after he was removed from the program and again determined not to be in compliance.  On 14 December 1990, the Commander, 32d Army Air Defense Command, Major General P___, recommended approval of the bar to reenlistment.  On 15 January 1991, the     U. S. Army Enlistment Eligibility Activity approved the bar to reenlistment.  

On 14 March 1991, the applicant was provided written and oral nutrition and weight reduction counseling in accordance with Army Regulation 600-9.  A handwritten note to his commander indicated the applicant was anxious for counseling that would help with his weight problem but he would have a difficult time until he was able to fully participate in a regular physical fitness program.

An undated Weight Control Progress Report indicates the applicant was weighed in on 15 and 22 March 1991 and 2 and 4 April 1991 while in a cast.  

On 19 July 1991, the applicant was seen by the Orthopedic Clinic which noted, “…who c/o r ankle (illegible) for (sic) 1.5 years ago…”

There is no separation (chapter 5, paragraph 5-15 (failure to meet Army body composition/weight control standards), Army Regulation 635-200) paperwork filed in the applicant’s records.  He, however, provides a separation packet that he signed on 22 July 1991 in which his commander had informed him that he was initiating action to separate him for failure to meet Army body composition/weight control standards.  The reason cited was that the applicant had been enrolled in the Army Weight Control Program three separate times within the last 30 months.  Since his initial enrollment in April 1988, he failed to make satisfactory progress.  His weight had fluctuated between 230 and 198 pounds and his body fat composition between 31.70 percent and 19.54 percent.  The applicant requested consulting counsel, requested consideration of his case by an administrative separation board, requested personal appearance before such a board, and checked that he submitted statements in his own behalf.

The applicant’s statements are not available (they may have been the same comments he made in rebuttal to his bar to reenlistment).  His commander recommended his separation but apparently the recommendation was not further processed.

An undated Personnel Weight Loss Progress form, DA Form 5511-R, indicated the applicant weighed 210 pounds on 31 July, 215 pounds on 4 September, and 210 pounds on 2 October 1991.  His goal weight was 193 pounds.

The applicant’s leave and earnings statement for the period ending 31 October 1991 indicated he had a beginning leave balance of 60 days, he earned 2.5 days, he had an ending leave balance of 62.5 days, he lost no leave, and he was paid 50 days leave.

The applicant separated on 12 November 1991 upon his ETS.  His DD Form 214, item 16 shows he was paid for 10 days accrued leave.  He had completed 18 years and 1 month of creditable active service.  He was paid separation pay in the amount of $20,862.00.

In August 1992, the VA granted the applicant a 10 percent disability rating for degenerative spurring L5-S1 and C5-7 (10 percent) and asthma (10 percent) and noted that he had service connected conditions of recurrent sprains of the right ankle, left knee probable ruptured meniscus, and hypertension but they were less than 10 percent disabling.

Army Regulation 600-9 establishes policies and procedures for the implementation of the Army Weight Control Program.  Section II, Responsibilities, paragraph 16 states that each soldier is responsible for meeting the standards prescribed in this regulation.  If a soldier consistently exceeds the personal weight goal, he or she should seek the assistance of master fitness trainers for advice on proper exercise and fitness and health care personnel for a proper dietary program.  In other words, exceeding a properly selected goal should “trigger” the soldier to use the substantial help available to alter his or her fitness and dietary behavior.  Paragraph 18 states that health care personnel will identify those individuals who have a pathological condition requiring medical treatment and will evaluate overweight soldiers when they have a medical limitation which prescribes assignment limitations such as no mandatory strenuous physical activity.  One of the requirements prior to placing a soldier in the Army Weight Control Program is a statement from health care personnel whether the cause of the overweight condition is or is not due to a medical condition.  Paragraph 22 states that personnel who exceed the screening table weight and the body fat standard for their current age group will not be allowed to reenlist or extend their enlistment.  The commander exercising general court-martial convening authority or the first general officer in the soldier’s normal chain of command may approve extension of enlistment for an individual who has a temporary medical condition which precludes loss of weight.  Paragraph C-5 states that when one’s energy input (calories) is greater than one’s energy output (activity), one stores the extra calories as body fat.  To stay in balance, exercise must be increased or calorie intake must be decreased or exercise with calorie reduction may be combined for the best results.

Dorland’s Illustrated Medical Dictionary, 26th edition defines “pathology” as that branch of medicine which treats of the essential nature of disease; defines “disease” as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs; and defines “injury” as harm or hurt, a wound or maim, usually applied to damage inflicted to the body by an external force.  

Army Regulation 601-280 prescribes criteria for the Total Army Retention Program.  At the time, chapter 6 prescribed procedures to deny reenlistment to soldiers whose immediate separation under administrative procedures was not warranted but whose reentry into, or service beyond ETS with, the Active Army was not in the best interest of the military.  Imposition of a bar to reenlistment does not preclude administrative separation at a later date.  It is intended to put the soldier on notice that he or she is not a candidate for reenlistment and he or she may be a candidate for separation if the circumstances that led to the bar to reenlistment are not overcome.  Paragraph 6-5d(3) stated that bar to reenlistment procedures against soldiers having 18 but less than 20 years of active Federal service at ETS, and who were not extended to attain retirement eligibility, would be approved only by Headquarters, Department of the Army.  Such requests for bars to reenlistment would be forwarded to the Commander, U. S. Army Enlistment Eligibility Activity in St. Louis, MO.  

Army Regulation 635-200 governs the separation of enlisted personnel.  Paragraph 1-15b provides that if the separation authority recommends involuntary separation of a soldier with 18 or more years of active Federal service, the proceedings, with complete documentation and the recommendation of the separation authority, will be sent to Headquarters, Department of the Army, Alexandria, VA for final determination.  Paragraph 5-15 provides that soldiers who fail to meet the body composition/weight control standards set forth in Army Regulation 600-9 may be separated per this paragraph when such condition is the sole basis for separation.  Separation action may not be initiated under this paragraph until the soldier has been given a reasonable opportunity to comply with and meet the weight/body fat reduction goals prescribed for him or her by health care personnel.  Soldiers who have been diagnosed by health care personnel as having a medical condition which precludes them from participating in the Army body composition/weight control program will not be separated under this paragraph.  

Army Regulation 630-5 prescribes policies governing various types of authorized absences.  In pertinent part, it states that since 10 February 1976, members can receive accrued leave payment for no more than 60 days during a military career.
Internet site, medlineplus.gov, corroborates Army Regulation 600-9’s statement that, to reduce weight, the only proven long-term and safe method is to burn more calories than one ingests.  This is achieved by reducing the caloric intake (eat less or healthier foods) or by increasing the energy expenditure (exercise more).

Department of the Army, DAPE-MP message 202100Z December 1991, Subject: Voluntary Incentive Programs to Support Army Drawdown, provided policy guidance for implementing the strength reduction separation incentives.  It provided information about voluntary incentive programs available to soldiers who were fully qualified for retention but who voluntarily separated.  Commander, U. S. Total Army Personnel Command message 201010Z April 1993, Subject:  FY 93 Early Retirement Program prescribed eligibility requirements for the first early retirement program.

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 this requirement.

2.  Although applicant’s counsel states they initially filed this request in 1993, there is no evidence of a previous Board action in the applicant’s file or in the Board’s records-keeping system.

3.  Records at the Defense Finance and Accounting Service show the applicant cashed in 50 days of accrued leave when he reenlisted in November 1985.  This information is verified on the leave and earnings statement provided by the applicant.  That leave, combined with the 10 days he cashed in when he separated in November 1991, brought him to the maximum amount, 60 days, that he could cash in during his military career.

4.  The applicant has provided no evidence to show that he had a pathological condition that caused his overweight condition.  He has provided evidence to show he had an ankle injury (which appears to have been incurred in April 1990 and the Board notes that he had been first placed in the Army Weight Control Program two years earlier in April 1988) which restricted his ability to do strenuous physical activity.  He never made claims that degenerative spurring or asthma prevented him from performing vigorous exercise, only that his ankle injury did.  His profile allowed him to walk, swim, bicycle, and use a rowing machine, all of which, combined with a corresponding decrease in caloric intake, would presumably have resulted in weight loss.  It appears that the applicant’s battalion commander’s comment that the applicant should have reduced his food intake was not strictly arbitrary but was based upon accepted medical principles. It does not appear to the Board that Major General P___’s decision was based on his own negative bias against the applicant which had a “trickle down effect” throughout the rest of the applicant’s chain of command since his decision was made after the applicant’s company commander had initiated the bar to reenlistment and after his battalion commander had recommended approval of it. 

5.  It is not quite evident to the Board that the applicant was completely committed to overcoming the bar to reenlistment but for his injuries.  He had been in the Army Weight Control Program twice prior to incurring his ankle injury. He was informed prior to being placed in the program the second time (and the Board presumes also prior to the first time) that a medical evaluation would be accomplished by health care personnel to determine if he had a medical condition which inhibited him from losing weight.  The Board presumes that, as a senior noncommissioned officer, if such an evaluation had not been conducted he would have raised that issue as a rebuttal to his being placed in the program.  There is no evidence that he did so.  

6.  Army Regulation 600-9 makes it clear that it is the soldier’s responsibility to meet the standards prescribed in this regulation.  It was the applicant’s responsibility to seek the assistance of master fitness trainers for advice on proper exercise and fitness and health care personnel for a proper dietary program.  If he waited until 14 March 1991 to obtain dietary counseling, he was derelict in his responsibilities to have waited so long to do so.

7.  The Board notes that the applicant weighed-in three times while he was in a cast.  However, since the fact that he was in a cast was noted on the Weight Control Progress Report, it appears his command did take into consideration the extra weight for the cast.  In addition, he continued to weigh in over his maximum allowable weight in July, September, and October 1991, presumably after his cast was removed.  

8.  The applicant was not separated under the provisions of Army Regulation 635-200, chapter 5, paragraph 5-15.  While administrative separation action was initiated, it appears it was not processed to completion.  Even if it had been, he did not have 18 years of active Federal service when that action was initiated in July 1991.  Therefore, guidelines as established in Army Regulation 635-200, paragraph 1-15b were not applicable.  The applicant separated upon his ETS.  Since the applicant would have had 18 years of active Federal service as of the date of his separation, the bar to reenlistment was properly approved by Headquarters, Department of the Army’s Enlistment Eligibility Activity in St. Louis, MO.  

9.  The early separation and early retirement provisions were meant to provide incentives for soldiers to request voluntary separation who, had it not been for the reduced force structure of the Army, would have been fully eligible for retention.  The applicant was not eligible for retention and he lost his eligibility for retention prior to reaching 18 years of active Federal service.  

10.  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

__AAO__  __KAH___  ___TL___  DENY APPLICATION

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

INDEX

CASE ID	AR2002067233	
SUFFIX		
RECON		
DATE BOARDED	2002/07/30	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	128.14	
2.	136.00	
3.		
4.		
5.		
6.