IN THE CASE OF: BOARD DATE: 13 October 2016 DOCKET NUMBER: AR20150008373 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 13 October 2016 DOCKET NUMBER: AR20150008373 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ___________x______________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. IN THE CASE OF: BOARD DATE: 13 October 2016 DOCKET NUMBER: AR20150008373 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, correction of his records to show he was retired under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), by reason of physical disability. 2. The applicant states: a. He was discharged from the New Jersey Army National Guard (NJARNG) for not meeting the Army's height and weight standards, as required by Army Regulation 600-9 (The Army Weight Control Program), after he had completed 16 years, 8 months, and 13 days of total active service. His failure to meet height and weight standards resulted from a medical surgery he underwent, after which he was diagnosed with diabetes and placed on medication that contributed to his weight issues and depression. He stands firm that he was unjustly discharged from the Active Guard/Reserve (AGR) Program. b. Diabetes is a metabolic disorder that promotes weight gain. It is a fact that the medication he was prescribed and taking promoted weight gain. Additionally, being in a high stress, threatening environment contributed to his weight gain and depression. Higher headquarters leaders were constantly against any progress he managed to make and they influenced the outcome of his Medical Evaluation Board (MEB). 3. The applicant provides: * unsigned memorandum from the applicant to the Commander, Headquarters and Headquarters Company (HHC), 1st Battalion, 150th Aviation Regiment, NJARNG, dated 18 November 2002 * email from Lieutenant Colonel (LTC) JD to Major (MAJ) JNM, dated 24 February 2003 * memorandum for record (MFR) from the Chief, Primary Care Clinic, Patterson Army Health Clinic, Fort Monmouth, NJ, dated 25 February 2003 * memorandum from the Program Manager, Diabetes Institute, Walter Reed Army Medical Center to MAJ JNM, dated 27 February 2003 * letter from the applicant to his Member of Congress, dated 4 March 2003 * forwarded email from MAJ JNM to the applicant, dated 5 March 2003 * unsigned DA Form 4187 (Personnel Action) * email from LTC WRC to Colonel (COL) FC, dated 7 March 2003 * letter from the applicant's appointed counsel to a member of the NJARNG Office of the Staff Judge Advocate (SJA), dated 24 March 2003 * DD Form 2808 (Report of Medical Examination), dated 18 July 2003 * DA Form 5500-R (Body Fat Content Worksheet – (Male)), dated 28 October 2003 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 21 November 2003 * MFR from LTC (previously MAJ) JNM, dated 5 November 2014 * MFR from the applicant, dated 6 November 2014 * letter from Brigadier General (BG) (previously LTC) JD to the applicant, dated 28 January 2015 CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the NJARNG on 1 October 1976. 3. He was ordered active duty in the AGR Program on 9 March 1987 and was promoted to the rank/grade of SGT/E-5 on 7 October 1988. 4. His official military personnel file (OMPF) contains an endorsement from the Deputy Director, Personnel and Community Service, Headquarters, State Area Command, NJARNG, addressed to the Commander, 1st Battalion, 150th Aviation Regiment, dated 9 March 1996, which contains the following comments: Investigating the waiver for SGT [Applicant]. It is obvious that he is unable to make weight standards due to his medical condition. This medical condition prevents him from participating in a weight control program. Unit should remove flagging action and reenlist him for a 3 year maximum extension pending medical clearance by medical authorities. 5. He extended his expiration term of service (ETS) date on 14 March 1996 and again on 21 January 1997, thereby establishing a new ETS date of 21 March 2003. 6. His OMPF contains a DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)) that shows a flag was initiated on 19 April 1998 based on his failure to maintain Army height and weight standards and his enrollment in the Army Weight Control Program. 7. His OMPF contains a DA Form 3349 (Physical Profile), dated 24 February 2003, which shows he was issued a permanent physical profile based on multiple medical conditions, including lower back pain/hnp (herniated nucleus pulposus), acute discitis, and type II diabetes. 8. The applicant executed a series of contractual extensions that culminated in his ETS date being adjusted to 21 May 2004. 9. Orders 297-083, issued by the NJARNG on 24 October 2003, ordered his release from AGR status, not by reason of physical disability, effective 21 November 2003. 10. His OMPF contains a DA Form 5500-R, dated 28 October 2003, which shows his body fat exceeded the standard allowed for his height and weight; he was determined to have 37.19 percent (%) body fat and was authorized 26% body fat. 11. His OMPF contains memoranda from his company, battalion, and brigade-level commanders, dated 29 October and 20 November 2003, wherein each commander recommended the approval of his request for an enlistment extension waiver, thereby allowing him to extend his ETS for a period of 6 months. Each memorandum addresses his evaluation by an MEB. His brigade-level commander states the MEB found him "Fit for Duty"; however, his MEB Proceedings are not available for review. 12. The applicant was honorably released from active duty on 21 November 2003. His separation packet is not available for review; however, his DD Form 214 shows: * he was credited with completing 16 years, 8 months, and 13 days of net active service during this most recent period of active service and 6 months and 23 days of prior active service * he was credited with completing 1 year, 3 months, and 4 days of prior inactive service * he was credited with completing 18 years, 6 months, and 10 days of total service as of the date of his release from active duty * he was released from active duty in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 18, by reason of weigh control failure 13. The applicant remained assigned to HHC, 1st Battalion, 150th Aviation Regiment following his release from active duty; however, his status reverted back to that of a traditional, M-day Guard member. 14. Orders 027-028, issued by the NJARNG on 27 January 2006, discharged him from the NJARNG and the Reserve of the Army, effective 22 May 2004. 15. The applicant's National Guard Bureau (NGB) Form 23 (Retirement Points Summary Statement) is not available for review in this case. 16. The applicant's medical records are not available for review and his OMPF is void of any documentation that: * clarifies his physical status vis-à-vis surgery(ies) he underwent and any resulting medical issues, including but not limited to diabetes * shows he was barred from reenlistment for his failure to satisfactorily progress in the Army Weight Control Program * documents the results of his MEB 17. The applicant provides: a. An unsigned memorandum from the applicant to the Commander, HHC, 1st Battalion, 150th Aviation Regiment, NJARNG, dated 18 November 2002, subject: Rebuttal Statement for Recommendation to Bar to Reenlistment from the NJARNG Active Guard Reserve (AGR) of SGT [Applicant]. In this memorandum, the applicant rebutted the pending Bar to Reenlistment that his commander had imposed, citing his medical conditions and his progress in the Army Weight Control Program. b. An email from LTC JD to MAJ JNM, dated 24 February 2003, wherein the author cited the side effects of diabetes medications; specifically, weight gain and water retention associated with the diabetes medication "Glucovance." c. An MFR from the Chief, Primary Care Clinic, Patterson Army Health Clinic, Fort Monmouth, NJ, dated 25 February 2003, wherein the author stated the applicant suffered from non-insulin diabetes; however, it was being controlled by oral medications. He further stated that two of the complications of his medical condition and the oral medications he was taking were weight gain and a decreased ability to lose weight rapidly. d. A memorandum from the Program Manager, Diabetes Institute, Walter Reed Army Medical Center to MAJ JNM, dated 27 February 2003. In this memorandum, the author noted that the applicant's physician recently changed his diabetes medication from "Glucovance" to "Metformin." The author further noted the applicant's "duty-limiting back pain." e. A letter from the applicant to his Member of Congress, dated 4 March 2003, wherein the applicant solicited his Member's assistance in continuing his service, despite his command pressuring him to "sign away [his] 18 year lock-in" and "request an administrative reduction." f. A forwarded email from MAJ JNM to the applicant, dated 5 March 2003, which documents dialog between members of the applicant's chain of command. g. An unsigned DA Form 4187, which is a voluntary request for reduction to the rank/grade of specialist (SPC)/E-4; however, the form is unsigned. h. An email from LTC WRC to COL FC, dated 7 March 2003, which appears to suggest the applicant was informed his request for reenlistment waiver would not be signed unless he submitted a request for voluntary reduction from SGT/E-5 to SPC/E-4. i. A letter from the applicant's appointed counsel to a member of the NJARNG Office of the SJA, dated 24 March 2003, wherein counsel alluded to improper conduct by a member of the applicant's chain of command. Specifically, counsel noted an attempt on the part of a NJARNG officer to influence the outcome of the applicant's MEB. j. A DD Form 2808, dated 18 July 2003, which documents a medical examination the applicant underwent for the purpose of his MEB. k. An MFR from LTC (previously MAJ) JNM, dated 5 November 2014, wherein he stated: This memorandum serves to document my personal involvement with SGT [Applicant]'s discharge from the NJARNG AGR Program. At the time leading up to his departure from AGR, I had completed numerous counseling statements and individual weigh-ins for SGT [Applicant]; all aforementioned documents were consolidated into a standard, indexed binder and submitted by me to the Army Chief of Staff. At the time during SGT [Applicant]'s discharge, I was the Full Time Support Supervisor (FTSS) for the 1-150th Aviation Battalion, West Trenton, NJ. SGT [Applicant] was one of numerous assigned AGR soldiers that I was responsible for during the week. His primary duty entailed processing and submitting Traditional Drilling Guard payroll; a critically important job that he always conducted in an outstanding manner. The following information serves to demonstrate the unprofessional and hostile manner in which NJARNG Senior Leaders elected to adopt in forcibly discharging SGT [Applicant] from the AGR program. Shortly after submitting the indexed binder containing the numerous counseling statements and weigh-in records to the Army Chief of Staff, I learned of a particular, prescription medication that SGT [Applicant] had been prescribed by an Air Force physician following his colon surgery. I'm unable to recall the name of the specific medication at this time; however, I vividly remember that it promoted weight gain. Upon discovering this fact, I contacted the Cdr, 1-150th Aviation Battalion at the time, LTC Jxxx DiNxxxxx, a pharmaceutical regional sales manager for a reputable drug company, and advised him of this revelation. LTC DiNxxxxx, currently serving as the NJARNG Assistant Adjutant General as a Brigadier General, immediately recognized the significance of him being prescribed such a medication and the potential impact it could have on SGT [Applicant]'s military career. WE agreed that it was paramount to immediately contact the Army Chief of Staff to inform him of the newly discovered evidence, thus staving off SGT [Applicant]'s impending discharge from the AGR program, especially given that he was only days from an 18 year lock-in. Upon informing the Chief of Staff office, I was flabbergasted that the senior leaders were not interested in the newly discovered facts. I was told, "They would take it from here". I notified LTC DiNxxxxx of the unprofessional response that I received from the Chief of Staff Office. It was my understanding at the time, LTC DiNxxxxx would contact the office himself to confirm and clarify the incident. l. A letter from BG JD to the applicant, dated 28 January 2015, wherein he stated: I was the brigade level commander who signed one of the letters for SGT [Applicant]. He had stopped reporting to work and therefore we separated him. I am writing this letter because I believe at the time that SGT [Applicant] was separated, there was additional information that should have been evaluated and there may have been mitigating circumstances. SGT [Applicant] had worked in the Aviation Battalion for the first 12 years I was in the NJ National Guard. He had been a very hard worker and an extremely organized. He was extremely fit, had a great attitude and work ethic before he had some medical issues. I believe that these medical issues began with surgery and continued for the remainder of his service. He was diabetic and placed on medication that could have contributed to his weight issues. Due to his weight, he became the focal point of many in the chain of command and they were determined to have him separated. I believe that the medications SGT [Applicant] was on may have also contributed to depression and as he gained weight he became more depressed. He was taken out of the Aviation Battalion and moved to the Joint Force Headquarters for his last assignment and we lost visibility on his duty performance. Based on more recent findings about depression, l believe that SGT [Applicant] should have been more closely evaluated and that after almost 18 years of active service, this Soldier should be provided some long term benefits. 18. The Army Review Boards Agency (ARBA) Senior Medical Advisor provided an advisory opinion on 7 September 2016, wherein he stated: a. Case Management Division (CMD) requested a medical advisory opinion review of this case for: Alleged medical condition (diabetes) warranted separation through medical channels. Applicant also claims to have developed Anxiety (no medical documents) after being placed on medication following surgery. b. The applicant's DD Form 214 indicated a Release from Active Duty separation, Honorable (character) and Weight Control Failure (narrative reason for separation) per Army Regulation 635-200, chapter 18 with Active Duty service from 19870309 through 20031121. c. The applicant is petitioning "for active duty retirement due to being discharged for not being able to meet Height [sic] requirements as per 600-9, with a total of 16 years, 8 months, and 13 days of active duty time. The reason for not meeting height/weight requirements was due to a medical surgery as an AGR Soldier. All of my medical issues began after my surgery and then diagnosed with diabetes and placed on a medication that contributed to my weight issues. This medication also contributed to my depression." The applicant provided copies of only a few medical notes with the initial application. d. Brief summary: (1) A review of the applicant's electronic medical record (AHLTA) reviewed one record dated 6/6/2003 from the WRAMC Neurology Clinic for Consult evaluation of numbness in hands, feet and medial thigh. Notes diagnosis of NIDDM 4 years ago (review comment - that would indicate onset in 1999(?)) with BG 110-120, last HgA1C- 6.2%, and TSH wnl in March 2003. BP of 118/63, pulse-79, resp-16, weight-310#, height-72.5", BMl-41.5, temp-98.4. Neuro exam significant for 5-15 bilat DF and 4+/5 bilat toe flex; servere vib loss bilateral feet and ankles with decreased LTipp/temp, JPS intact. Tandem mild difficulty. Negative Tinels at wrist/elbow; Phalens reproduces pain symptoms. Assessment: Diabetic peripheral neuropathy, sensory (small and large fiber) with mild motor component, cannot r/o diabetic myopathy in foot intrinsics. Suspect bilat CTS, mild without motor weakness or objective sensory findings; however has positive Phalens which reproduce sensory numbness symptoms in palms. Note: The Outpatient Record Location on this note indicates "ZZ Hand Carry Records." (2) Request from ARBA CMD dated 28 August 2015 for medical documents that support issue of depression and diabetes - metabolic disorder. Case placed on hold for 90 days and as of 14 Dec 2015 no records received. As of today (7 September 2016) no additional records or inquires received/recorded. (3) Memorandum for record dated 25 Feb 2003 documenting visits at Patterson Army Health Clinic, Fort Monmouth, NJ, on 30 October 2002 and 24 February 2003 for overweight evaluation." He currently has non-insulin diabetes controlled on oral medications. Two of the complications of his above medical condition and medications are weight gain and decreased ability to lose weight rapidly." Signed by military physician, MAJ Sxxxx. (4) Memorandum from WRAMC dated 27 February 2003 regarding Endocrinology Clinic visit with visit on 14 January 2003. The note addresses sulfonylureas and insulin association with weight gain and low blood sugar. (5) Report of Medical Examination (DD 2808) dated 20030718 and 20030728 for Medical Board with clinical evaluation all normal except midline supra-public scar and decreased pinprick sensation dorsum of feet. Remarks note dizziness. Summary of defects: Type II Diabetes Mellitus, Hypertension, and Chronic Low Back Pain; Recommendation - MEB. (6) Body Fat Content Worksheet (Male) DA 5500-R completed on 28 Oct 2003 height of 72.5 inches and weight of 315# with 55 inch (x3) abdominal girth and 20 inch neck, with Soldier's Body Fat of 37.19% (Soldier authorized 26%). (7) A Memorandum for Record dated 5 November 2014 written by LTC Jxxx Mxxxxxx, NJARNG was reviewed. (8) A Memorandum for Record dated 6 November 2014 written by the applicant was reviewed. (9) A letter dated 28 January 2015 written by BG Jxxx DiNxxxxx, Assistant Adjutant General, NJARNG was reviewed. (10) Limited review of VA records through the JLV (Joint Legacy Viewer) revealed no medical problems listed. (11) No medical documentation of reported depression (primary care &/or psychiatric) provided. (12) No medical documentation of primary care management and treatment provided. (13) No medical documentation of diabetes management and treatment provided (except the single military medical endocrinology consult at WRAMC as noted above). (14) No medical documentation of the abdominal problem and subsequent surgery provided. (15) No printout of listing of prescribed medications provided. e. The applicant clearly did not meet retention standards in accordance with Army Regulation 600-9 in regards to weight (310-315#), body fat percentage (37%), and morbid obesity with BMI of >41. f. The applicant met medical retention standards IAW Chapter 3, Army Regulation 40-501 [Standards of Medical Fitness], and following the provisions set forth in Army Regulation 635-40 that were applicable to the applicant's era of service. g. The applicant's medical conditions were duly considered during medical separation processing. h. A review of the available documentation found no evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. 19. The applicant was provided a copy of the advisory opinion on 8 September 2016, in order to allow him the opportunity to submit comments or a rebuttal. He did not respond. REFERENCES: 1. Army Regulation 600-9 established policies and procedures for the implementation of the Army Weight Control Program. It provided that: a. The Army traditionally has fostered a military appearance that is neat and trim. Further, an essential function of day-to-day effectiveness and combat readiness of the Army is that all personnel are healthy and physically fit. Self-discipline to maintain proper weight distribution and high standards of appearance are essential to every individual in the Army. b. 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 and health care personnel. c. Commanders and supervisors will monitor all members of their command to insure that they maintain proper weight, body composition, and personal appearance. At minimum, personnel will be weighed when they take the Army Physical Fitness Test or at least every 6 months. Personnel exceeding the screening table weight or identified by the commander or supervisor for a special evaluation will have a determination made of percent body fat. Identification and counseling of overweight personnel are required. Commanders and supervisors will provide educational and other motivational programs to encourage personnel to attain and maintain proper weight (body fat) standards. d. A medical evaluation will be accomplished by health care personnel when the Soldier has a medical limitation, or is pregnant, or when requested by the unit commander. One is also required for Soldiers being considered for separation due to failure to make satisfactory progress in a weight control program, or within 6 months of ETS. If an individual's condition is diagnosed by medical authorities to result from an underlying or associated disease process, health care personnel will take one of the following actions: (1) Prescribe treatment to alleviate the condition and return personnel to their unit. (2) Hospitalize individuals for necessary treatment; this action applies to Active Army personnel only. Reserve Component personnel will be referred to their personal physician for further evaluation or treatment at the individual's expense. (3) Determine whether the individual's condition is medically disqualifying for continued service. In these cases, disposition will be made under provisions of appropriate regulations. e. If health care personnel discover no underlying or associated disease process as the cause of the condition and the individual is classified as overweight, these facts will be documented and the individual entered in a weight control program by the unit commander. Suspension of favorable personnel actions will be initiated for personnel in a weight control program. (1) 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 body fat standards. Weight-ins will be made by unit personnel monthly to measure progress. (2) An individual who has not made satisfactory progress after any two consecutive monthly weigh-ins may be referred by the commander or supervisor to health care personnel for evaluation or reevaluation. If health care personnel are unable to determine a medical reason for lack of weight loss-and if the individual is not in compliance with the body fat standards and still exceeds the screening table weight, the commander or supervisor will inform the individual that progress is unsatisfactory and he or she is subject to separation. f. 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 processed as follows: (1) If health care personnel determine that the condition is due to an underlying or associated disease process, the Soldier will be referred for a medical evaluation. (2) If no underlying or associated disease process is found to cause the overweight condition, the Soldier will be subject to separation from the Service under appropriate regulations. 2. Army Regulation 635-200, chapter 18, outlines policies and procedures for separation actions based on failure to meet body fat standards set forth in Army Regulation 600-9. To be separated under this chapter, the Soldier must have been given a reasonable opportunity to comply with and meet the Army's body fat standards. Soldiers separated under this chapter will be given an honorable characterization of service. 3. Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that govern the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. a. The objectives of the system are to maintain an effective and fit military organization with maximum use of available manpower; provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability; and provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected. b. Soldiers are referred to the PDES when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in a medical evaluation board, when they receive a permanent medical profile, P3 or P4, and are referred by an MOS Medical Retention Board, or when they are command-referred for a fitness-for-duty medical examination. c. The PDES assessment process involves two distinct stages: the MEB and the physical evaluation board (PEB). The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service. d. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 4. Title 10, U.S. Code (USC), section 1176 (Enlisted members: retention after completion of 18 or more, but less than 20, years of service) provides that a Reserve enlisted member serving in an active status, who is selected to be involuntarily separated (other than for physical disability or for cause), or whose term of enlistment expires and who is denied reenlistment (other than for physical disability or for cause), and who, on the date on which he or she is to be discharged or transferred from an active status is entitled to be credited with at least 18 but less than 20 years of service computed under section 12732 of this title, may not be discharged, denied reenlistment, or transferred from an active status without the member’s consent before the date on which the member is entitled to be credited with 20 years of service computed under section 12732 of this title. DISCUSSION: 1. The applicant's request for correction of his records to show he was retired under the provisions of Army Regulation 635-40, by reason of physical disability, was carefully considered. In effect, he is asking that his discharge under the provisions of chapter 18, Army Regulation 635-200, be voided and replaced with a separation resulting from physical disability. 2. In support of this request, he contends: a. His failure to meet height and weight standards resulted from surgery he underwent, after which he was diagnosed with diabetes and placed on medication that contributed to his weight issues and depression. b. Diabetes is a metabolic disorder that promotes weight gain. It is a fact that the medication he was prescribed and taking promoted weight gain. Additionally, being in a high stress, threatening environment contributed to his weight gain and depression. 3. His medical records are not available for review; however, a sufficient amount of documentation exists that shows: * he was diagnosed with Type II diabetes mellitus; however, his diabetes was controlled by oral medications * he struggled with managing his weight and conforming with Army body fat standards * a flag was initiated based on his failure to maintain Army height and weight standards and his enrollment in the Army Weight Control Program 4. His MEB Proceedings are not available for review; however, there is evidence that shows an MEB considered his medical conditions and found him fit for duty. Therefore, absent evidence to the contrary or evidence that shows he suffered from some other unfitting physical condition that warranted his referral into the PDES, there would not have been a basis for separating him by reason of physical disability. 5. His separation packet is not available for review; however, it appears his chain of command recognized his weight struggles as early as 1996 and provided him sufficient opportunity to conform to the expected standard. When it was apparent he could not, they chose not to grant him a waiver for continuation on active duty and instead chose to separate him from active duty based on his unsatisfactory progress in the Army Weight Control Program. 6. He was released from active duty for failing to maintain Army body fat standards. Nothing in the available evidence suggests he was denied counseling or an opportunity to comply with the standards set forth in Army Regulation 600-9, or was otherwise inappropriately separated. 7. At the time of his release from active duty, he was credited with the completion of 17 years, 3 months, and 6 days of total active service; however, he had completed 18 years, 6 months, and 10 days of total service, both active and inactive. 8. Title 10, USC, section 1176 provides that a Reserve Soldier serving in an active status, who is selected to be involuntarily separated (other than for physical disability or for cause), or whose term of enlistment expires and who is denied reenlistment (other than for physical disability or for cause), and who, on the date on which he or she is to be discharged or transferred from an active status is entitled to be credited with at least 18 but less than 20 years of service computed under section 12732 of this title, may not be discharged, denied reenlistment, or transferred from an active status without the member’s consent before the date on which the member is entitled to be credited with 20 years of service computed under section 12732 of this title. 9. He was discharged from the ARNG and Reserve of the Army on 22 May 2004. His NGB Form 23 is not available for review in this case; therefore, it is not possible to determine how many qualifying years for non-regular retirement he had attained on the date of his discharge. However, since he was credited with over 17 years of active service at the time of his release from active duty, it is possible he may have been credited with at least 18 years of service on the date of his discharge. If so, he should have been afforded the legal protections granted in 10 USC 1176. He has not raised this issue, and, given the lack of substantiating evidence, it would not be appropriate at this time to correct his record to show he was afforded the legal protections of 10 USC 1176. If he chooses and he is able to provide supporting documentation confirming how many years of service he has completed that qualify for non-regular retirement, he may submit a new application requesting that the Board address this issue. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017490 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017490 16 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2