ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 May 2019 DOCKET NUMBER: AR20160017710 APPLICANT REQUESTS: Correction of his records to show he was separated due to physical disability. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 13 December 2013 * Department of Veterans Affairs (VA) letter pertaining to his monthly monetary entitlement * 5-page of medical records from the Triangle Neurosurgery, Raleigh, NC * 81 pages of VA medical records * 20 pages of a sleep medicine report FACTS: 1. The applicant states he was discharged under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 18 (Failure to Meet Weight Control Standards) after 17 years and 51 weeks of service. He was discharged even though he was suffering from obvious disabilities that include a metal plate in his right ankle, a neck that needed to be fused together which was causing him severe shoulder pain, sleep apnea, traumatic brain injury, post-traumatic stress disorder, and severely flattened feet. 2. Following service in the Regular Army from 16 July 1992 to 15 July 1996 and in the Army National Guard from 16 July 1996 to 15 March 1997, the applicant enlisted in the Regular Army on 20 December 1999. 3. The applicant's last three Noncommissioned Officer Evaluation Reports, rating periods commencing on 20 July 2011, show he did not meet height/weight standards during these rating periods. 4. On 13 June 2013, the applicant's immediate commander informed him he was initiating a separation action against him for failure to meet weigh control standards. The commander stated the reason for the proposed action was that the applicant failed to make satisfactory progress in the Army Weight Control Program after a six month period without any underlying medical issues. 5. On 8 October 2013, an administrative separation board convened and recommended the applicant's separation from the service, based on his failure to make satisfactory progress in the Army Weight Control Program after a six month period without any underlying medical issues. 6. On 19 November 2013, an official from the Office of the Staff Judge Advocate reviewed the administrative separation board proceedings and associated documents and determined that they satisfied all legal requirements. 7. On 22 November 2013, the separation authority approved the administrative separation board recommendations and directed the applicant' separation prior to the expiration of his term of service. 8. The applicant was honorably discharged on 13 December 2013 under the provisions of Army Regulation 635-200, chapter 18, by reason of weight control failure. He completed 17 years, 11 months, and 24 days of active duty service. 9. The applicant provided documentation showing he is currently receiving service connected disability compensation from the VA. 10. On 10 January 2017, the Army Review Boards Agency senior medical advisor provided an advisory opinion. The advisory found the available documentation showed the applicant met medical retention standards for all medical conditions and there was no indication for physical disability evaluation system processing. There is no available evidence supporting a change to his narrative reason for separation. A copy of the complete medical advisory was provided to the Board for their review and consideration. 11. The applicant was provided a copy of the advisory opinion on 11 January 2017 and given an opportunity to submit comments. He did not respond. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the medical advisory finding no available evidence supporting a change to his narrative reason for separation and the applicant not rebutting those findings, the Board concluded there was insufficient evidence to change the narrative reason for separation. 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. REFERENCES: 1. Army Regulation 635-200, sets forth the basic authority for the separation of enlisted personnel. Chapter 18 provides that 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. 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. 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. 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. 2. Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, the individual must be unable to perform the duties of his or her office, grade, rank, or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 3. Army Regulation 635-40 (Disability Evaluation for Retention, Retirement or Separation) 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. It states that 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. 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 Soldier reasonably may be expected to perform because of their office, grade, rank, or rating. 4. Title 38, U.S. Code, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. 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) AR20160017710 3 1