ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 27 August 2019 DOCKET NUMBER: AR20180003041 APPLICANT REQUESTS: * reconsideration of his previous request to change his discharge to a medical discharge * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Two Department of Veterans Affairs (VA) Letters, dated 15 December 2015 and 30 November 2017 * VA Rating Decision Letter * Support Letter from Clinical Counselor * Support Letter from Sergeant X__ FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20150014551 on 23 February 2017. 2. The applicant states he gained weight due to being severely depressed on what happened to his buddy in the sandbox losing his life. He also suffers from post-traumatic stress disorder (PTSD) and traumatic brain injury (TBI) which made him gain weight. He states that for a while on active duty he thought it was attention deficit hyperactivity disorder (ADHD) and was given medications, he later found out it was PTSD with TBI. He feels he could have been medically boarded. He was in the process of being medically boarded but did not want to miss deploying again with his fellow Soldiers. He asked his doctor not to medically board him. He asks the Board to please look at his record and he would provide what he can, he feels just in this being changed. 3. The applicant provides: a. VA Letter, dated 15 December 2015, stating the VA Board of Veteran’s Appeals had made a decision on the applicant’s appeal on 8 October 2015. The board had implemented their decision based on the evidence listed on its rating decision. b. VA Rating Decision Letter, dated 3 December 2015 showing the decision to evaluate the applicant’s PTSD with TBI, which was currently 10 percent disabling, was increased to 70 percent effective 19 August 2011. c. Support Letter from Clinical Counselor, stating he met for 60 minutes with the applicant by means of video conference on 14 June 2013, at the request of his attorney. The purpose of this interview was to evaluate the degree to which the applicant was impaired by his service-related to PTSD. Though his diagnosis is apparently not in dispute, he concluded that the applicant clearly qualifies for the diagnosis of Severe Chronic PTSD, as defined by the Diagnostic and Statistical Manual of Mental Disorders DSM-IV-TR criteria. d. Support Letter from Sergeant X__, Army behavioral health noncommissioned officer. He describes a serious convoy accident that occurred in Iraq on 2 June 2011. The accident caused the death of one of the applicant’s fellow Soldiers. The applicant witnessed the accident. Sergeant X__ was on the behavioral health response team that evaluated the applicant and his platoon members after the accident. Sergeant X__ states due to this event, the applicant suffered from nightmares and survivor’s guilt. e. VA Letter, dated 30 November 2017, giving a summary of the benefits the applicant is currently receiving for the VA. The letter also provides a summary of the applicant’s military information. 4. A review of the applicant’s service records show: a. He enlisted in the Regular Army on 5 June 2006. He reenlisted on 19 December 2007. b. He served two tours in Iraq; 17 January 2007 to 2 April 2008 and 16 December 2009 to 3 December 2010. c. On 14 July 2009 the applicant was given a permanent 2 level profile by medical authority. The profile limited the amount of physical activity the applicant could do for daily physical fitness activity and the Army physical fitness test. d. On 4 March 2010, the applicant was counselled by his immediate commander for exceeding the Army’s body fat standards per Army Regulation (AR) 600-9 (The Army Weight Control Program). The counselling was recorded on DA Form 4856 (Developmental Counseling Form) and showed he exceeded the weight standard by 39 pounds and he exceeded the body fat standard by 4 percent. He was advised that he would be evaluated by medical personnel to determine any underlying medical conditions that caused him to exceed the allowable body fat percentage. He was also advised that if no medical reasons were found, he would be suspended from favorable personnel actions until he met the body fat standards. His immediate commander also informed the applicant that if he did not show progress in two consecutive monthly weigh-ins, by losing 3 to 8 pounds per month, the commander could initiate separation action under AR 635-200 (Active Duty Enlisted Administrative Separations) if there were no underlying medical reasons for exceeding the standards. e. On 18 March 2010, the applicant received nutritional and weight reduction counseling and was found capable to participate in the Army weight control and exercise program. f. The applicant was treated with medication for attention deficit/hyperactivity disorder (ADHD) and anxiety and depressive systems during May 2010 to April 2011. He was not diagnosed with PTSD while on active duty. g. A review of the applicants monthly weigh-in counseling’s on DA Forms 4856 show: * 31 March 2011, weight standard was exceeded by 44 pounds and body fat over the maximum allowable by 10 percent * 11 April 2100, weight standard was exceeded by 44 pounds and body fat over the maximum allowable by 10 percent * 26 April 2011, weight standard was exceeded by 50 pounds and body fat over the maximum allowable by 10 percent * 12 May 2011, weight standard was exceeded by 44 pounds and body fat over the maximum allowable by 10 percent h. On 22 July 2011, his immediate commander notified the applicant of his intent to initiate separation action of the applicant, under the provisions of AR 635-200 chapter 18, paragraph 18-2a(2). The immediate commander stated his specific reason for recommending separation: On 4 March 2011, the applicant was entered into the Army Body Fat reduction program. A loss of 3-8 pounds was established as a minimum satisfactory progress in the program. The applicant went two consecutive months during April and May 2011, without making minimum satisfactory progress and still exceeded the body fat standards. On 18 March 2010 the applicant was evaluated by health care personnel and found to have no medical condition that precluded participation in the Army body fat reduction program. The immediate commander recommended the applicant receive an honorable characterization of service. The applicant acknowledged the immediate commander’s intent to recommend his separation. The applicant exercised the following rights: * consideration of his case by an administrative separation board, if my service is characterized no less favorably than (honorable) (under honorable conditions * personal appearance before an administrative separation board, if his service is characterized no less favorably than (honorable) (under honorable conditions * a statement on his own behalf was not submitted * waived consulting with counsel i. On 29 July 2011, the immediate commander recommended the applicant be separated from active duty prior to the expiration of service due to failure of the Army Weight Control Program and that he receive an honorable discharge. The separation authority approved the applicant’s separation and ordered he receive an Honorable Discharge Certificate. j. On 18 August 2011, he was honorably discharged. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, Chapter 18. He was assigned a Separation Program Designator (SPD) JCR, Weight Control Failure. He completed 5 years, 2 months and 14 days of active service. 5. The Army Review Board Agency Senior Medical Advisor provided the following: a. The applicant may not have met medical accession standards for ADHD and long history of medical use (EPTS, not disclosed) IAW (in accordance with) Chapter 2, Army Regulation (AR) 40-501 (Medical Services Standard of Medical Fitness), and following the provisions set forth in AR 635-40 (Personnel Separations- Physical Evaluation for Retention, Retirement or Separation), that were applicable to the applicant's era of service. b. He met medical retention standards for right knee pain (chondromalacia patellae), pes planus (flat feet), neck (cervical) pain, shoulder pain, back pain, history of right hand/finger fracture, sleep associated issues (snoring, hypersomnia due to chronic sleep deprivation), history of ankle pain IAW (in accordance with) Chapter 3, Army Regulation (AR) 40-501 , and following the provisions set forth in AR 635-40 that were applicable to the applicant's era of service. c. The applicant's medical conditions were duly considered during medical separation processing. The applicant was separated for obesity and failing the Army Weight Control Program. The applicant's weight/obesity issue existed prior to service, resulting in a temporary one-month overweight/body fat waiver at the time of enlistment in 2006. Stimulant medications taken for the treatment of ADHD (EPTS and re-started during deployment) typically suppress appetite leading to weight loss (not weight gain). 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. d. The applicant was provided a copy of the advisory opinion in November 2016. He was given a 30 day time line to respond to the medical advisory, the applicant did not respond. 7. On 29 May 2012, the Army Discharge Review Board (ADRB) reviewed the applicant's discharge processing but found it proper and equitable. The ADRB denied his request for an upgrade of his discharge. 8. Army Regulation 600-9 established policies and procedures for the implementation of the Army Weight Control Program. 9. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty. 10. 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 11. 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. 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. 12. By regulation, AR 15-185 (ABCMR) an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. BOARD DISCUSSION: The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. After review of the application and all evidence, the Board found relief is not warranted. The applicant’s contentions, medical concerns, and the medical advisory were carefully considered. The medical advisory official determined there was no boardable medical condition during his period of active service, nor mitigating factors to his misconduct and subsequent separation. He was provided the opportunity to rebut the advisory; however, he did not respond. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. Based upon the preponderance of the evidence, the Board agreed evidence of record shows he did not show PTSD symptoms so severe during his period of service that a P3 profile should have been issued requiring referral to a medical evaluation board. 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. 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. Army Regulation 600-9 (Army Weight Control Program), 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 APRT 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 their expiration term of service·. 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. 3. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty. At the time of his separation, SPD code "JCR" was the appropriate SPD code for Soldiers separated for failure to meet body fat standards under the provisions of Army Regulation 635-200, chapter 18. 4. Army Regulation 635-200, (Active Duty Enlisted Administrative Separations) 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. 5. Army Regulation 635-40 (Personnel Separations- Physical Evaluation for Retention, Retirement or Separation), 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, chapter 3, as evidenced in a medical evaluation board, when they receive a permanent medical profile, P3 or P4, and are referred by an 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 medical evaluation board (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. 6. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 7. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180003041 7 1