IN THE CASE OF: BOARD DATE: 21 April 2016 DOCKET NUMBER: AR20150004102 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: 21 April 2016 DOCKET NUMBER: AR20150004102 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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: 21 April 2016 DOCKET NUMBER: AR20150004102 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: a. to revoke his discharge under the provisions of chapter 18 (Failure to Meet Body Fat Standards), Army Regulation 635-200 (Personnel Separations - Enlisted Personnel); and b. replace it with a separation under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) due to physical disability 2. The applicant states, in effect: * the Department of Veterans Affairs (VA) has awarded him a service-connected disability for his knee injury; he had to pay back the separation pay he received from the Army before he could receive VA benefits * he contends he should have been separated for having a physical disability rather than being involuntarily discharged under chapter 18, Army Regulation 635-200 * the doctors at Landstuhl Regional Medical Center wanted to refer him into the Physical Disability Evaluation System (PDES); they determined his knee injury was the cause of his weight gain * his unit did not permit him to be referred into PDES and separated him instead 3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 30 August 1996. 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 Regular Army on 4 August 1989. 3. After failing his semi-annual Army Physical Fitness Test on 2 September 1994, he was enrolled in his unit's weight control program. His allowable body fat percentage for his age group was exceeded by 8.30 percent. On being enrolled, he was advised he: * was required to attend a dietary counseling session at his health facility * would be medically evaluated to determine if there was any organic factors which precluded him from reaching and maintaining Army body fat standards * must schedule a weigh-in the first week of each calendar month and, at that weigh-in, demonstrate satisfactory progress toward achieving weight standards * would participate in the unit's supplementary physical training program consisting of a 1-hour session every Monday, Wednesday, and Friday * could be separated if he failed to make progress 4. Between September 1994 and March 1996, he participated in the weight control program, and he was consistently counseled as to his progress. He also was provided nutrition and weight-reduction counseling by a dietitian. 5. His complete separation packet is not available, however, the following documents are present: a. His company commander notified him he was being considered for separation under the provisions of chapter 18, Army Regulation 635-200. On 19 March 1996, he acknowledged receipt of his commander's notification. b. On 27 March 1996, he met with consulting counsel and was advised of the basis for the separation action. He requested consideration of his case by, and to appear before, an administrative separation board. c. In a self-authored statement, dated 13 June 1996, addressed to the separation authority, he, in effect, requested a conditional waiver of his right to have his case heard by an administrative separation board. In return for waiving the administrative separation board, he requested an honorable discharge. d. On 20 June 1996, he amended his earlier elections and waived his right to have his case considered by an administrative separation board. e. The separation authority's decision is not available, but there is a DD Form 214 which shows he was honorably discharged on 30 August 1996 by reason of failing weight control standards. 6. In an advisory opinion, dated 24 February 2016, an official from The Office of the Surgeon General (OTSG) recommended disapproval of the applicant's request based upon a review of his medical records. a. The applicant failed body fat standards in September 1994, and had subsequent right knee surgery in June 1995. b. The record clearly shows multiple attempts to improve his compliance with weight standards in that he was counseled 13 times between September 1994 and February 1996. He was given appropriate time before right knee surgery and after that surgery to resolve his overweight condition and to meet body fat standards. c. His available medical records do not strongly support that his right knee condition caused or contributed significantly to his overweight condition. Additionally, there was no compelling proof that his right knee condition significantly interfered with his military duties. As such, this condition did not fail medical retention standards as defined in Army Regulation 40-501 (Standards of Medical Fitness) and would not have warranted referral into the PDES. 7. On 29 February 2016, the applicant was provided a copy of the above-cited advisory opinion but offered no response. REFERENCES: 1. Army Regulation 635-200, chapter 18, outlines policies and procedures for separation action based on failure to meet body fat standards set forth in Army Regulation 600-9 (The Army Body Composition Program). a. To be separated under this chapter, the Soldier must have been given a reasonable opportunity to comply with and meet the body fat standards. b. Soldiers who have been diagnosed by health care personnel as having a medical condition which precludes them from participating in the Army body fat reduction program will not be separated under this chapter. If no medical condition exists, separation action is required. c. The service of Soldiers separated under this chapter will be characterized as honorable. 2. Army Regulation 40-501 provides medical retention standards and is used by medical evaluation boards (MEB) to determine which medical conditions will be referred to a physical evaluation board (PEB). a. Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement) identifies various medical conditions and provides the standards by which a determination may be made as to passing or failing retention standards. b. Paragraph 3-3 states Soldiers whose medical conditions fail retention standards are to be referred to a PEB as defined in Army Regulation 635-40. The PEB will make the determination of fitness or unfitness. c. Chapter 7 provides guidance for the physical profile serial system. The profile is based on the function of body systems and their relation to military duties. There are six factors, designated as: * "P" for physical capacity or stamina * "U" for upper extremities * "L" for lower extremities * "H" for hearing * "E" for eyes * "S" for psychiatric d. Each factor is assigned a numerical designation from 1 to 4. * "1" represents a high level of medical fitness * "2" means there are some activity limitations * "3" equates to significant limitation * "4" indicates defects of such severity military duty performance is -drastically limited e. The DA Form 3349 is used to record both permanent and temporary profiles. A profile with a permanent 3 rating for any category requires approval by a physician designated by the military treatment facility commander. All permanent 3 or 4 profiles are reviewed by an MEB physician or physician approval authority. 3. Army Regulation 635-40 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. Chapter 3 states the mere presence of 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. b. Chapter 4 provides guidance on referring Soldiers for evaluation by a MEB when a question arises as to the Soldier's ability to perform the duties of his or her office because of physical disability. 4. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice in the Army rating. a. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. b. The VA does not have authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge to compensate the individual for loss of civilian employability. c. As a result, these two Government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. DISCUSSION: 1. The applicant requests his discharge under the provisions of chapter 18, Army Regulation 635-200 be voided and replaced with a separation as a result of physical disability. In support of this request, he argues: * he was awarded a service-connected disability for his right knee condition; he does not provide a copy of the VA's Rating Decision, but even if provided, it would be addressing the condition of his knee after his separation * at the time of his separation, his physicians were going to refer him into the PDES, but were precluded from doing so; he offers no evidence indicating he had a permanent "3" or "4" physical profile which would have required a review by a MEB physician for possible referral into the PDES 2. Army Regulation 635-40 states the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. It is necessary in each case 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. Neither the available record (as further confirmed by the OTSG review) nor the evidence submitted by the applicant shows his medical condition precluded him from performing those duties required by his MOS and grade. 3. With regard to being awarded a service-connected disability for his right knee condition, an award of a rating by another agency does not establish error in the rating assigned by the Army's disability system. a. Operating under different laws and their own policies, the VA does not have the authority or the responsibility for determining medical unfitness for the military services. b. The VA may award ratings because a medical condition was related to military service (service-connected) and now affects the individual's civilian employability. c. The findings of the VA as to disabling conditions are not binding on the Army and do not require a reassessment of earlier determinations. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150004102 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150004102 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2