ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 May 2019 DOCKET NUMBER: AR20160014417 APPLICANT REQUESTS: * in effect, discharge due to physical disability in lieu of honorable discharge due to weight control failure * amendment of her narrative reason for separation * upgrade of her reentry eligibility (RE) code APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge form the Armed Forces of the United States) * 165 page of medical documents * National Institute of Health Public Access Author Manuscript, “Obesity and Polycystic Ovary Syndrome” (PCOS) * Your Weight Matters Magazine article, “Polycystic Ovarian Syndrome (PCOS) and Obesity” FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. The reason for her discharge is unjust because her weight control failure was due to medical issues she was receiving treatment for at the time of her discharge. She was diagnosed with PCOS, which causes hormonal imbalances that can result in weight gain and impede weight loss. b. She was sent to an endocrinologist before her discharge but was never sent to a Medical Evaluation Board (MEB) despite the medical treatment she was receiving. She requests that her RE code be changed commensurate with the correct reason for discharge and that her narrative reason for separation be adjusted accordingly. The narrative reason for her separation and RE code are impeding a career opportunity for her in the military. 3. The applicant enlisted in the Regular Army on 4 August 2005. 4. A DD Form 2795 (Pre-Deployment Health Assessment), dated 1 June 2006, shows she was not deployable pending evaluation by the Gynecology Clinic for dysfunctional uterine bleeding (DUB), PCOS, and pelvic ultrasound for deployment status. 5. A Standard Form 600 (Chronological Record of Medical Care) note shows she was seen at the Gynecology (GYN) Clinic at Tripler Army Medical Center on 2 June 2006. Her exam was normal but she had a history of abnormal bleeding as well as a cyst on her ovary. She was to schedule a follow up gynecological appointment for abnormal bleeding and she was currently not deployable from a gynecological standpoint, but it was unclear whether she would be deployable in the future. She had an appointment scheduled for a mental health exam. 6. A handwritten note on the bottom of the above-referenced DD Form 2795 states an addendum from the Gynecology Clinic colposcopy (cervical examination) states the applicant’s cervical biopsies showed mild dysplasia (presence of abnormal cell growth) only. Proper follow up is a repeat PAP smear (test to screen for cervical cancer) in 6 months. For this problem the applicant was deemed deployable. With regard to her pelvic ultrasound of 21 July 2006, the decreasing size of her left ovarian cyst was reassuring; however, the applicant was still concerned about the two ovarian cysts in addition to persistent abdominal symptoms. An evaluation with the doctor who did the original evaluation was recommended. 7. She served in Iraq from 27 July 2006 through 11 October 2007. 8. A Standard Form 600, dated 3 July 2007, shows that during her deployment she was admitted to the emergency room at Camp Speicher on the date of the form and discharged on the following day. She was seen for reevaluation of a ruptured ovarian cyst that was draining into the left lower quadrant of her abdomen for the past 5 days. She was advised to follow up with Obstetrics (OB)/GYN and continue taking Motrin as needed. 9. Numerous DA Forms 4856 (Developmental Counseling Form) show she received developmental counseling, which included counseling for positive performance, event-oriented counseling as well as counseling for not meeting the Army weight standards on 17 occasions between 25 January 2007 and 18 April 2008. 10. Her 21 July 2007 DA Form 4856 specifically notified her she would be enrolled in the Army Weight Control Program and was required to lose 3-8 pounds per month. She was advised should she fail to meet the standards within 12 months of removal from this program, she would be subject to separation in accordance with Army Regulation 635-200 (Active Duty Enlisted Administrative Separations). She was to participate in the troop special population physical training program, receive nutrition counseling, and receive monthly taping. This form is not signed by the applicant. 11. Her records contain multiple DD Forms 5501 (Body Fat Content Worksheet), between the dates of 25 May 2007 and 3 June 2008, which show both her weight and body fat percentage were not in compliance with the standards. 12. A Standard Form 600, dated 26 February 2008, shows a pelvic ultrasound determined the applicant’s endometrium (the membrane lining the uterus) was mildly thickened and hyperechoic (amplitude of echoes in an ultrasound) consistent with her history of irregular bleeding. Her left ovary was smaller than previously, but remained abnormally enlarged. The previous left ovarian mass was no longer evident; however, in the same region of the left ovary there were two cysts within a circumscribed region with peripheral flow. 13. Her records also contain a memorandum authored by her immediate commander, dated 13 March 2008, officially notifying her of her entry into the Army Weight Control Program effective 13 February 2008. If she failed to make satisfactory progress (weight loss of 3-8 pounds per month) for 2 consecutive months or failed to meet body composition standards within 6 months of enrollment in the program, she may be processed for separation from the service in accordance with Army Regulation 635-200, chapter 18. 14. A DD Form 2807 (Report of Medical History), dated 22 June 2008, shows the applicant marked “yes” to multiple conditions and wrote in item 29 (Explanation of “Yes” Answers) the following: a. The Army’s so-called expert medical service at Tripler Army Medical Center nearly cost her her life in 2006. She had an ovarian cyst burst and was hemorrhaging. Her blood count want from 39 to 30 in less than 1 week. She was advised to take 2-3 birth control pills every 4 to 6 hours and to increase the dosage if her flow did not slow. Her noncommissioned officer found her in her barracks room on the floor. She was taken to the doctor who determined she overdosed, which can be very lethal. b. Afterward she was deployed with PCOS and two other large ovarian cysts without any treatment or proper care for 15 months. She intended to publish on online forum regarding her PCOS and medical care once she was separated because she did not want to let another person be subjected to this type of treatment without bringing awareness to the situation. 15. A DD Form 2808 (Report of Medical Examination), dated 23 June 2008, shows she underwent a medical examination for the purpose of separation and was found qualified for service and for separation. She was not found not have a disqualifying medical condition and he physical profile rating was “1, 1, 1, 1, 1, 1.” 16. On 9 July 2008, her immediate commander notified her of his initiation of action to separate her under the provisions of Army Regulation 635-200, chapter 18, for failing to meet the body fat standards set forth in Army Regulation 600-9 (The Army Body Composition Program). He notified her of her rights and informed her he was recommending she receive an honorable discharge. 17. On 9 July 2008, she acknowledged receipt of notification of the recommendation to separate her under the provisions of Army Regulation 635-200, chapter 18, due to failure to meet body fat standards. She was advised by consulting counsel for the basis for the contemplated separation, of the rights available to her, and the effect of any action taken by her in waiving her rights. She waived consulting counsel and representation by military counsel. She did not submit statements in her own behalf. 18. On 23 July 2008, trial counsel provided a legal review of the applicant’s discharge packet and determined the separation in accordance with Army Regulation 635-200, chapter 18, to be legally sufficient. 19. On an illegible date, the approval authority approved her separation under the provisions of Army Regulation 635-200, chapter 18, for weight control failure. He directed her service to be characterized as honorable. 20. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she was honorably discharged on 23 September 2008, after 3 years, 1 month, and 20 days of net active service under the provisions of Army Regulation 635-200, chapter 18. Item 28 (Narrative Reason for Separation) shows weight control failure and item 27 (Reentry Code) shows 3. 21. The applicant provided two articles. The article from the National Institutes of Health is titled, “Obesity and Polycystic Ovary Syndrome” and the article from Your Weight Matters Magazine is titled, “Polycystic Ovarian Syndrome (PCOS) and Obesity.” Both articles state there is complicated link between PCOS and obesity. It is clear that women affected by obesity have a greater risk for PCOS and women with PCOS have a greater risk for obesity. 22. On 16 July 2018, the Army Review Boards Agency (ARBA) senior medical advisor provided an advisory opinion. The ARBA senior medical advisor stated: a. Limited review of her Department of Veterans Affairs (VA) records shows she currently has a VA service-connected rating of 90 percent overall, 70 percent for post-traumatic stress disorder, 30 percent for migraine headaches, 30 percent for ovary disease, and 10 percent for tinnitus. b. The applicant met medical retention standards for all listed conditions, including PCOS, DUB, cystitis, and urinary retention. All of her medical conditions were duly considered during her separation processing. The preponderance of the evidence indicates the applicant had onset of PCOS (including both right and left ovarian cysts), irregular menses, weight gain/obesity, and anxiety/depression in adolescence that clearly existed prior to service. c. There is no indication for disability evaluation system processing, MEB or Physical Evaluation Board necessity. The applicant was separated for weight control failure, whose effects are not mitigated by her medical and/or behavioral health conditions. No modification to her narrative reason for separation and/or RE code is warranted based on her medical conditions. She currently does not meet medical accession standards for the purpose of reenlistment. The Army has neither the role nor the authority to compensate for progression or complications of service-connected conditions after separation. A copy of the complete medical advisory was provided to the Board for their review and consideration. 23. A copy of the advisory opinion was provided to the applicant on 12 March 2019, and she was given an opportunity to submit comments, but she did not respond. 24. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. 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. 25. Army Regulation 635-40 establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a. Paragraph 3-2 states 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 who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. Paragraph 3-4 states Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 26. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 18 states Soldiers who fail to meet the body fat standards set forth in Army Regulation 600-9 (The Army Body Composition Program) are subject to involuntary separation per this chapter when such condition is the sole basis for separation. Separation proceedings may not be initiated under this chapter until the Soldier has been given a reasonable opportunity to meet the body fat standards, as reflected in counseling or personnel records. a. Soldiers who have been diagnosed by health care personnel as having a medical condition that precludes them from participating in the Army body fat reduction program will not be separated under this chapter. b. If there is no underlying medical condition and a Soldier enrolled in the Army Weight Control Program fails to make satisfactory progress in accordance with Army Regulation 600-9, separation proceedings will be considered. c. Initiation of separation proceedings is required for Soldiers who fail to meet body fat standards during the 12-month period following removal from the program, provided no medical condition exists. d. The service of those separated per this chapter will be characterized as honorable, unless an uncharacterized description of service is required for Soldiers in an entry-level status. 27. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific reasons for separating Soldiers from active duty and the associated SPD codes to be entered on the DD Form 214. It states SPD code JCR is the appropriate code to assign to Soldiers voluntarily discharged under the provisions of Army Regulation 635-200, chapter 18, due to weight control failure. 28. The SPD/RE Code Cross-Reference Table provides instructions for determining the RE code for Regular Army and Reserve Component Soldiers being separated. The Table in effect at the time stipulates an RE code of 3 will be assigned to members separated with an SPD code of JCR. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the record and the medical advisory opinion. The Board noted her medical history and deployments, her enrollment in the Army Weight Control Program as well as her current VA rating. The Board also considered the medical advisory and the conclusion that the applicant met medical retention standards at the time of separation. The Board determined, by preponderance of evidence, that the applicant did not have a disability at the time of separation and her Honorable discharge for failing to meet Army Weight Control standards was appropriate. 2. After reviewing the application and all supporting documents, the Board found the relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION 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. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and 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 either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. 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. 3. Army Regulation 635-40 establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a. Paragraph 3-2 states 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 who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. Paragraph 3-4 states Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 4. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 18 states Soldiers who fail to meet the body fat standards set forth in Army Regulation 600-9 (The Army Body Composition Program) are subject to involuntary separation per this chapter when such condition is the sole basis for separation. Separation proceedings may not be initiated under this chapter until the Soldier has been given a reasonable opportunity to meet the body fat standards, as reflected in counseling or personnel records. a. Soldiers who have been diagnosed by health care personnel as having a medical condition that precludes them from participating in the Army body fat reduction program will not be separated under this chapter. b. If there is no underlying medical condition and a Soldier enrolled in the Army Weight Control Program fails to make satisfactory progress in accordance with Army Regulation 600-9, separation proceedings will be considered. c. Initiation of separation proceedings is required for Soldiers who fail to meet body fat standards during the 12-month period following removal from the program, provided no medical condition exists. d. The service of those separated per this chapter will be characterized as honorable, unless an uncharacterized description of service is required for Soldiers in an entry-level status. 5. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard. Table 3-1 (U.S. Army Reentry Eligibility Codes) includes a list of RE codes. a. RE code 1 applies to Soldiers completing their terms of active service who are considered qualified to reenter the U.S. Army. They are qualified for enlistment if all other criteria are met. b. RE code 3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable. They are ineligible for enlistment unless a waiver is granted. 6. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific reasons for separating Soldiers from active duty and the associated SPD codes to be entered on the DD Form 214. It states SPD code JCR is the appropriate code to assign to Soldiers voluntarily discharged under the provisions of Army Regulation 635-200, chapter 18, due to weight control failure. 7. The SPD/RE Code Cross-Reference Table provides instructions for determining the RE code for Regular Army and Reserve Component Soldiers being separated. The Table in effect at the time stipulates an RE code of 3 will be assigned to members separated with an SPD code of JCR. 8. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities that were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The VA does not have the 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. These two government agencies operate under different policies. 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. ABCMR Record of Proceedings (cont) AR20160014417 8 1