ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 4 November 2020 DOCKET NUMBER: AR20190003367 APPLICANT REQUESTS: medical retirement with 100 percent disability rating in lieu of administrative separation due to weight control failure. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 294 (Application for a Review by the Physical Disability Board of Review (PDRB) of the Rating Awarded Accompanying a Medical Separation from the Armed Forces of the United States) * Counsel Legal Brief * Permanent Order Number 141-001 dated 21 May 2018 * DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)) dated 2 October 2018 * DA Form 4856 (Developmental Counseling Form) dated 2 October 2018, subject: Flag for Involuntary Separation * DA Form 4856 dated 2 October 2018, subject: Notification Potential for Separation due to Medically Unable to Meet Standards * Applicant Emergency Department Discharge Sheet dated 22 October 2018 * Memorandum for Record dated 23 October 2018, subject: [Company Commander] Letter of Intent [Administrative Separation for Army Body Composition Program Failure] * DA Form 268 dated 23 October 2018 * DA Form 3349 (Physical Profile Record) dated 1 November 2018 * DA Form 3822 (Report of Mental Status Evaluation) dated 16 November 2018 * DD Form 2648 (Service Member Pre-Separation/Transition Counseling and Career Readiness Standards EForm for Service Member’s Separating, Retiring, Released from Active Duty (REFRAD)) initiated 4 November 2018 * Memorandum For Record dated 28 November 2018, subject: [Applicant] Request for Retention * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 19 December 2018 * Excerpts from Applicant’s military service treatment records and civilian medical records approximately 145 pages FACTS: 1. The applicant with the support of civilian legal counsel states he was honorably discharged on 12 December 2018 under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 18 due to weight control failure. He served over 19 months of active duty service which does not qualify him for Department of Veterans Affairs (VA) benefits. To be eligible for VA benefits, a Service Member is required to serve 2 consecutive years or receive a medical separation/retirement. a. Prior to enlisting in the Regular Army, the applicant underwent two knee surgeries to correct genetic abnormalities. At the time of his enlistment he presented his civilian medical records for review and he was granted a medical waiver to enlist. He successfully completed his initial entry training passing three computer certification tests ahead of his peers. In time due to military training including physical fitness training, he developed patella femoral pain syndrome. b. He suffered from a series of panic attacks, anxiety, severe depression and had suicidal thoughts in late 2018 prior to his discharge. Counsel opines the applicant’s behavioral health significantly declined after his permanent assignment to a unit at Fort Bragg, North Carolina. The unit maintained high physical fitness standards and the applicant developed severe and chronic knee pain while trying to adhere to their training standards. He had to run 4 miles per day, weight lift and conduct deep knee extensions. c. While at Fort Bragg he did not receive flags for discipline or behavioral related issues. All his drug screening tests were negative and he does not drink. Counsel opines the flags that were imposed by the applicant’s unit commander were directly related to his patella femoral pain syndrome including his flag for weight control. d. Counsel presents the applicant’s timeline of medical treatment and pending separation notification – * on 26 January 2018, visit to emergency room for knee pain with diagnosis of patella femoral pain syndrome * on 31 January 2018, visit to troop medical clinic for right knee pain (that started in basic training) during examination he showed signs of pain by motion, he refused a temporary medical profile * on 21 August 2018, scoring on the Patient’s Health Questionnaire – 9 (PHQ9) shows he was moderately to severely depressed * during the period from 10 September through 17 September 2018, suffered a mental and physical breakdown due to chronically increasing pain in his knees and due to the loss of sensitive equipment during a field training exercise; he stated physical fitness training was extremely difficult * during the period from 20 September through 24 September 2018, experienced panic and anxiety attacks with suicidal ideation; medical notes show he also was worried about passing his physical fitness test * on 24 September 2018, physical therapy assessment for chronic knee pain * on 2 October 2018, unit commander counseling informing him he could potentially be separated for not meeting medical standards referencing paragraph 5-17, Army Regulation 632-200 * on 10 October 2018, the brigade surgeon noted the applicant tried remediation for pain (ice, compression, and rest) with no positive results; his diagnosis was juvenile osteochondrosis (growing pains) * on 23 October 2018, unit commander "changed his mind" informing him he was "summarily being administratively discharged" under the provisions of chapter 18, Army Regulation 635-200 * on 24 October 2018, a physician assistant examined him summarizing he had bilateral knee pain, obesity, anxiety and panic attacks * on 1 November 2018, received physical profile for bilateral knee pain and behavioral health condition * on 6 November 2018, a cardiologist noted he had musculoskeletal chronic leg and foot pain * on 9 November 2018 (in an annual leave status), he sought treatment at a civilian orthopedic clinic seeing the surgeon, who conducted his two knee operations, who diagnosed him with bilateral knee patellofemoral syndrome noting his physical fitness training exceeds the capabilities of his patellofemoral joints to include he should not do lunges or knee extensions * on 15 November 2018, a civilian chiropractic specialist recommended physical therapy * on 16 November 2018, a neurologist stated the applicant was severely depressed * on 28 November 2018, submitted an appeal to administrative separation action requesting retention in the U.S. Army * on 19 December 2018, discharged e. Counsel states the 2 October 2018 meeting between the applicant and his unit commander, "This was the [Applicant’s] first real meeting regarding separation initiated by the Army, and it was based on a medical disability – not administratively based on body composition for which he was ultimately discharged." Counsel asserts the applicant’s unit commander did not provide appropriate notice, warning, counseling or other opportunity for him to rectify before he was summarily discharged. He also states, "The administrative discharge was accomplished without any formalities or ability to overcome the deficiencies, just a conversation between the [Applicant] and the Brigade Commander that he was discharged." f . Counsel asserts the applicant’s medical records document his medical disability due to bilateral knee patellofemoral syndrome and this medical condition impaired his ability to maintain the rigorous physical fitness training of his unit. Based on his unit’s physical fitness training, he will be impaired for the rest of his life. Counsel also makes disparaging comments that senior officers and the brigade surgeon colluded to fabricate medical evidence such that the applicant’s administrative separation for weight control failure would withstand challenges. g. Counsel claims the applicant’s unit commander did not conduct a body composition tape test in October 2018 and that he initiated separation action solely based on the applicant’s appearance. He accuses the brigade commander of eyeballing the applicant and summarily discharging him without tests, factual evidence or other supporting documentation. From his research, this is a violation of regulations and the fundamental concepts of fairness and due process. He opines it was the applicant’s pain syndrome that interfered with the applicant’s ability to maintain the weight standards because he could not exercise. h. Counsel also claims because the applicant’s medical diagnosis included depression he should have been medically separated for this condition too. He opines with the behavioral health questionnaires low scores the applicant should have received treatment for depression using antidepressant medication, psychotherapy or a combination of treatments. He surmises from his review of regulations that processing for medical separation takes precedence over administrative discharges for weight control. i. With a medical separation, he opines the applicant would not have to repay his enlistment signing bonus. j. He concludes by continuing with comments regarding the conduct of commissioned officers, commissioned officers in command positions, and the brigade surgeon alluding the applicant’s medical records were revised to only show the medical condition of juvenile osteochondrosis (growing pains). He unequivocally asserts these commissioned officers intentionally orchestrated a coordinated plan to deny the applicant access to VA healthcare. Thus, the applicant has the potential to become another negative statistic for the VA because he cannot get the benefits he needs to continue medical treatment for a service connected injury or other benefits associated with being a Veteran. 2. The applicant enlisted in the Regular Army on 1 May 2017 as shown on his DD Form 214. (His enlistment paperwork is not filed within his official military personnel record. Therefore, there is no verification he received an enlistment bonus as his counselor stated in his legal brief.) 3. He completed basic combat training at Fort Jackson, South Carolina then transferred to Fort Gordon, Georgia where he attended and passed his individual advanced training. Upon the completion of training he was awarded military occupational specialty (MOS) 25B (Information Technology Specialist). On or about 18 December 2017 he reported to Fort Bragg, North Carolina. On or about 9 January 2018 he was assigned as an information technology specialist to Headquarters and Headquarters Battery, 3rd Battalion, 321st Field Artillery Regiment. 4. Filed in his record is DA Form 5500 (Body Fat Content Worksheet (Male)) completed under the provisions of Army Regulation 600-9 (The Army Body Composition Program) effective 28 June 2013. On 8 May 2018 a staff sergeant (SSG)/pay grade E-6 initiated body composition taping because the applicant, age 25 at the time, weighed 204 pounds and was 69 inches tall exceeding the regulatory weight standards for his age. (By regulation, the maximum allowable weight for his age is 179 pounds.) The tape measurements show his estimated body fat percentage was 25.00 percent and his maximum allowable body fat was 22 percent. Therefore, based on tape measurements he exceeded the allowable body fat percentage by 3 percent. On 9 May 2018, the unit first sergeant indicated on this same form that the applicant was not in compliance with the weights standards. He recommended to the applicant that he consider a monthly weight loss of 3 to 5 pounds or 1 percent body fat to comply with the regulation. 5. Also on 9 May 2018 the applicant’s battery commander, a captain/pay grade O-3, initiated a flag under the provisions of the Army Body Composition Program by signing a DA Form 268. 6. On 10 May 2018 the applicant received a memorandum from his battery commander informing him he was enrolled in the Army Body Composition Program (ABCP) effective 8 May 2018 and that he was flagged. He was informed he would complete the instructions outlined in paragraph 3-6 (Actions, counseling, and evaluation for Regular Army and Reserve Component Soldiers on active duty) of Army Regulation 600-9 including: * reading the U.S. Army Public Health Center (APHC) Technical Guide (TG) 358 titled "Army Weight Management Guide" * completing and submitting his Soldier Action Plan within 14 days to his commander * meeting with a registered dietician within 30 days of enrollment and providing a memorandum from the health care provider confirming the nutritional counseling occurred * participating in monthly body fat assessments * participating in commanders’ and self-directed physical fitness programs within the parameters of any existing temporary or permanent profile * he could request a medical examination * the goal to 3 to 8 pounds of weight loss or 1 percent body fat reduction per month * failure to make satisfactory progress or achieve the body fat standard would result in a bar from reenlistment or separation from service (emphasis added) 7. Concurrently on 10 May 2018 the applicant acknowledged with his signature on a memorandum that he had read and understood why he was enrolled in the ABCP, that he would comply with his battery commander’s instructions, and that he requested a medical examination. The battery commander prepared and signed a memorandum to the applicant’s primary care provider requesting a medical examination. 8. On 19 June 2018 the applicant had an appointment at the post Army Wellness Center. In preparation for the appointment/examination he was exempted from physical readiness training for the day of the examination. 9. On 26 June 2018, the applicant underwent a required monthly weigh-in and body fat composition tape measurement. His weigh-in and measurements are recorded on a DA Form 5500 showing his weight was 194 pounds and his body fat composition was 21 percent. For his height of 69 inches, the screening table weight was 179 pounds. His authorized body fat composition was 22 percent. Therefore, he was now incompliance with Army standards. His first sergeant documented he counseled the applicant on DA Form 4856 (Developmental Counseling Form) concerning his removal from the ABCP and the continued requirement to follow the ABCP Soldier Action Plan so he would remain incompliance with the standards. 10. Concurrently on 26 June 2018, the applicant’s battery commander released him from the ABCP because he was now incompliance with the standards. He received a DA Form 268 removing him from the program. In addition, he received a memorandum from his battery commander informing him that if he exceeded the body fat standard within 12 months after release from ABCP, he would be flagged and separation action or a bar to continued service would be initialed. Further, if he were to exceed the body fat standards after 12 months, but prior to 36 months, he would be re-enrolled in the ABCP and only provided 90 days to meet the standards. If he could not meet the standards, he would be separated under the provisions of Army Regulation 600-9, paragraph 3-12d (Program Failure). Finally, he was informed his ABCP documentation would remain in his personnel record for 36 months. 11. On 24 September 2017 he completed a DD Form 2697 (Report of Medical Assessment) which is used to assist medical services personnel in the medical assessment of a Soldier who is being released from active duty. He annotated and submitted the following comments: * diagnosis of adjustment disorder with anxiety including taking medications Lexapro and Ataraxic * he could not drive a motor vehicle because he was experiencing blackouts * he wanted a behavioral health examination * he was treated many times at the post hospital and troop medical clinics * he would apply for benefits administered by the VA 12. A military physician assistant at the battalion reviewed the applicant’s DD Form 2697 making the following annotations: * he has extensive behavioral health/psychiatry history with diagnoses of adjustment disorder, anxiety, and panic attacks and was pending a follow-up appointment on 29 October 2018 * he was seen in the post emergency room for panic attacks and various miscellaneous encounters * possible loss of consciousness during panic attack currently pending consultations with cardiology and neurology * behavioral health and knee condition for which he would seek VA benefits 13. Also on 24 September 2018 he completed DD Form 2807-1 (Report of Medical History) with addendums wherein he made the following pertinent comments: * breathing problems when he exercises for which he has an inhaler * racing and pounding heart rate * requires dental work * (prior to enlistment) two knee reconstruction surgeries with emplacement of hardware to correct birth defects * painful arthritis in his knees with swelling * painful feet with swelling * gained 40 pounds in 45 days * dizzy, confused, poor memory and headaches * behavioral health conditions – panic attacks, frantic thoughts about normal situations, generalize anxiety disorder * difficulty conversing with others * insomnia * nonfunctional at work, cannot do his job 14. The same military physician assistant reviewed his DD Form 2807-1 stating in pertinent part the majority of the applicant’s health complaints stem from his behavioral health diagnosis and related anxiety attacks, he was obese and had knee pain. Additionally, the applicant received an enlistment medical waiver for his knee condition (bilateral patella reconstruction) which were surgically treated prior to entry onto active duty. His weight gain was not attributable to any known medical condition because his blood analysis was within normal limits. He had several pending medical appointments with specialists in psychology, neurology and cardiology. 15. On 2 October 2018, the applicant was counseled by his battery commander and the counseling session is recorded on a DA Form 4856. He was informed a flagging action was initiated on 24 September 2018 due to initiation of administrative separation under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17. The counseling form included what personnel actions were prohibited while flagged, what type of discharge characterization of service could be considered by the separation authority and the cause and effect of each type of discharge to include the loss of Veterans benefits. The applicant signed this form acknowledging receipt and that he agreed with the information provided to him. 16. A second DA Form 4856 was prepared on 2 October 2018 advising him of his potential separation for not meeting medical standards (that did not warrant processing through the disability evaluation system). His battery commander stated he had consulted with the battalion physician assistant who advised him that the applicant’s behavioral health condition may not improve to a point where he could fulfill his military service obligations to the U.S. Army. He was told he would be allowed time to continue with his behavioral health treatment and if he still was unable to perform his required duties, the commander would initiate separation action. He signed this counseling form acknowledging he agreed with the information provided. [Army Regulation 635-200, Chapter 5 (Separation for the Convenience of the Government), paragraph 5-17 (Other designated physical or mental conditions) authorizes separation authorities to separate Soldiers on the basis of a physical or mental condition not amounting to disability under the provision of Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation) and the condition(s) interfere with assignment to or performance of duty including disorders manifesting disturbance of perception, thinking, emotional control, or behavior sufficiently severe that the Soldier’s ability to effectively perform military duties is significantly impaired.] 17. On 22 October 2018 the applicant was seen at the emergency department at the post hospital for his adjustment disorder. It was determined by a medical doctor that he did not require hospitalization at that time. His discharge instruction sheet states, "Adjustment disorder is an excessive, lengthy reaction to a stressful event or situation. This reaction seriously damages social and occupational function. Treatment includes counseling and medication." He was provided with general written instructions on living a healthy lifestyle. 18. On 23 October 2018 he underwent a unit semi-annual weigh-in. A DA Form 5500 was prepared documenting his weight at 224 pounds which was 45 pounds over the authorized screening table weight for his height of 69 inches. A body fat tape measurement was conducted by an NCO and it shows his body fat percentage was 32 percent which was 10 percent over his authorized body fat percentage of 22 percent. His unit first sergeant indicated on this form that he was not in compliance with Army standards. 19. Also on 23 October 2018 his battery commander prepared a memorandum for record informing the applicant that it was his intent to initiate administrative separation for failure to comply with the Army weight control standards under the provisions of Army Regulation 635-200, chapter 18 (Failure to Meet Weight Control Standards). He further prepared a DA Form 268 flagging the applicant for failing to meet the standards of the ABCP. 20. On 24 October 2018, the applicant underwent a medical examination which was recorded on DD Form 2808 (Report of Medical Examination). The medical examiner determined in accordance with Army Regulation 40-501 (Standards of Medical Fitness) the applicant was qualified for continued service. The summary of his diagnoses included obesity, bilateral knee pain, and anxiety with panic attacks. He further stated the applicant had pending consultations for neurology and cardiology. At the time he weighed 224 pounds. 21. On 5 November 2018 his battery commander prepared a memorandum informing him he was considering initiating action to separate him for failure to meet weight control standards in accordance with Army Regulation 600-9. He was advised of his rights including: * submitting a written statement to the separation authority * obtaining all documents associated with his pending separation * waiving his rights * receiving counseling directed under the provisions of Title 10, U.S. Code, section 1142(b) * recoupment of the unearned portion of his enlistment bonus * undergoing a medical examination * reviewing and acknowledging the initiation action within 7 duty days 22. By separate memorandum on 5 November 2018 the applicant acknowledged receiving notification he was being considered for administrative separation under the provision of Army Regulation 635-200, chapter 18. He also acknowledged he understood his rights to include consulting with legal counsel. 23. On 16 November 2018 he underwent a mental status evaluation in compliance with regulatory guidance by a behavioral health medical provider. Under Section IV (Diagnosis) of his DA Form 3822 (Report of Mental Status Evaluation) it shows he had occupational problems. He was screened for post- traumatic stress disorder, depression, traumatic brain injury, substance abuse and sexual trauma. His cognition, perceptions, behavior, and impulsivity were within normal standards. His risk for harming himself was low and his risk for harming others was not elevated. The behavioral health provider concluded there was no evidence of a mental defect, emotional illness, or psychiatric disorder of sufficient severity warranting disposition through military medical channels. Therefore, he was psychologically cleared for any administrative action deemed appropriate by the separation authority. 24. On 27 November 2018 after meeting with his appointed counsel, the applicant acknowledged in writing he understood his characterization of service would be honorable and that he would submit statement(s) on his own behalf 25. On 27 November 2018 his battery commander prepared a memorandum recommending to his senior leaders that the applicant be separated prior to his expiration of term of service date for failing to meet the body fat standards of Army Regulation 600-9. His enlistment contract shows he enlisted for 5 years and 33 weeks on 17 April 2017. There were no records of court-martial or other disciplinary actions in his record. 26. On 28 November 2018 the applicant prepared a memorandum for record requesting retention on active duty to complete his term of service. He stated he wished to appeal the pending administrative separation for failing to maintain the ABCP standards stating he had two underlying medical conditions causing him to gain weight. He stated he suffers from chronic knee pain from physical fitness training and he had general anxiety disorder. He acknowledged he had knee surgery prior to joining the U.S. Army. However, his general anxiety disorder developed while in active service because of very stressful events that occurred in his unit. He also suffers from panic attacks. He received treatments by medical providers with some treatments being more effective than others. His underlying behavioral health conditions significantly contributed to his job performance. He passed all available industry computer technology classes offered during his advanced individual training and he knows he can do the required tasks, but he acknowledges he might not be the best fit for the U.S. Army particularly during high tempo deployments. With continued behavioral and physical health treatments, he is confident he could continue to serve. 27. The separation authority stated he had reviewed the applicant’s separation packet and his statement determining it was in the best interest of the U.S. Army to separate the applicant with an honorable characterization of service. He further directed that the applicant not be transferred to the Reserve component. 28. Accordingly on 4 December 2018 personnel specialists at Headquarters, U.S. Army Garrison Fort Bragg, Fort Bragg, North Carolina issued Orders 338-0269 discharging the applicant from the Regular Army effective 19 December 2018. The authority for his discharge was Army Regulation 635-200. 29. On 19 December 2018 he was honorably discharged from the Regular Army as shown on his DD Form 214. He served for 1 year, 7 months and 19 days of net active service during his period of service. He had no deployments or record of foreign service. His DD Form 214 contains the following pertinent information: * Block 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) shows among his awards the Army Achievement Medal * Block 18 (Remarks) – member has not completed first full term of service * Block 25 (Separation Authority) – Army Regulation 635-200, chapter 18 * Block 28 (Narrative Reason for Separation) – weight control failure 30. Through counsel he provides his service and civilian treatment medical records to support the claim that he met the criteria for entry into the disability evaluation system under the provisions Army Regulation 40-501 for failing to meet the medical retention standards of paragraph 3-31 and 3-17. A review shows the following information: * history of attention deficit hyperactivity disorder diagnosed in first grade * history of bilateral knee reconstruction surgery prior to enlistment based on "infant bilateral surgery for patellar correction" (See 26 January 2018 medical notes) * on 26 January 2018, seen in emergency department for knee pain after working out on exercise bike * on 31 January 2018, seen at behavioral health clinic for stress, repetitive injuries and weight gain * on 21 August 2018, primary care provider diagnosed anxiety disorder, not otherwise specified * on 10 September 2018, seen at behavioral health clinic for occupational stress and anxiety; concern medication was causing him weight gain * 16 September 2018, seen in emergency department for physiological pain with a diagnosis of acute anxiety reaction * on 17 September 2018, seen at behavioral health clinic for occupational stress and anxiety with unit leadership stating he is not performing his required duties or performing the duties of his military occupational specialty * on 17 September 2018, described his work environment as very stressful because he is the only information technologist in unit; potentially involved of loss of sensitive item requiring a "lock down" and subsequent search during a field training exercise; relationship problems with girlfriend * on 22 September 2018, behavioral health provider diagnosed adjustment disorder with anxiety as per the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V), he was referred to a psychiatrist * on 22 September 2018, seen in emergency department for altered state of consciousness while driving patient reported panic attack; neurological examination was unremarkable, cardiac examination was unremarkable, laboratory (blood) tests were normal except for elevated levels of thyroid stimulating hormonal agent; received referrals to cardiology and neurology * on 30 September 2018, for adjustment disorder with anxiety related to occupational problems; he has thoughts of suicide but denies his intent or a plan to act on his fleeting suicide ideation; prescribed Prozac and Klonopin * on 10 October 2018, for knee pain due to juvenile osteochondrosis bilateral tibia and fibula (congenital knee cap misalignment); his knee pain is consistent with Osgood-Schlatter disease * on 8 November 2018, seen in cardiology with his weight showing 227.4 pounds and a body mass index of 34.58 percent; an electrocardiogram was normal; his pulse oximetry was normal; physical examination was normal * on 9 November 2018 (civilian provider/surgeon), history of patella instability with multiple patellar dislocations underwent medical patellofemoral ligament reconstruction with Fulkerson osteotomies showing early degenerative changes; training requirements exceed the capabilities of his patellofemoral joint including he should not do lunges or knee extensions * on 14 November 2018, for problems related to occupational employment * on 16 November 2018, seen by neurology for loss of consciousness while driving on or about 24 October 2018 when he reported having a panic attack with heart palpitations and hyperventilation; neurological examination was normal * on 16 November 2018, seen by primary care provider who administered a Patient Health Questionnaire (PHQ) – 2 showing he screened positive for depression and he was currently in a situation where he felt he was being verbally or physically hurt, threatened, or made to feel afraid * on 30 November 2018, for transient alteration of awareness wherein a stress test was completed by cardiology with no abnormal findings * on 4 December 2018 (civilian provider), he underwent a physical therapy evaluation for his bilateral knee pain with the physical therapist stating he had a history of Osgood-Schlatter as a child; she provided him with a home health care plan for exercising * on 14 December 2018 (civilian provider), follow-up physical therapy appointment 31. The applicant provided a copy of his DA Form 3349 dated 1 November 2018 showing he had a temporary profile for adjustment disorder, altered consciousness and lower leg injury (bilateral). His restrictions included he temporarily could not carry and fire his individual assigned weapon and live and function, without restrictions, in any geographic or climate area. His profile history shows in the past 12 months he was temporarily profiled for 42 days and within the past 24 months for 60 days. In Section 5 (Medical Instructions to Unit Commander) the health care provider stated, "[The applicant] is non-deployable due to decreased mission capability from [behavioral health] BH condition… Treatment is expected to occur monthly for 2 months with the potential to return to deployable status within 2 months. The Soldier may perform all other MOS related tasks." Additionally, it was stated he should not perform physical readiness training exercises when he fails to maintain correct form and he should implement a walk-to-run progression training program. He was restricted from combative training, jumping, the "Mountain Climber," wearing load bearing equipment and forced road marches. He was authorized to take an alternate physical fitness test by walking for 2 miles instead of running for 2 miles. Further, he should not drive, operate heavy machinery, climb, and swim or handle weapons until cleared by his medical provider. Final instructions state his temporary profile limitations do not require a referral into the disability evaluation system. 32. Based on the applicant's contention the Army Review Board Agency medical staff provided a medical review for the Board members. See the "MEDICAL REVIEW" section. MEDICAL REVIEW: 1. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant's records in the Interactive Personnel Electronic Records Management System (iPERMS), the Armed Forces Health Longitudinal Technology Application (AHLTA), Health Artifacts Image Management Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV) and made the following findings and recommendations: The applicant is requesting a change in discharge from Weight Control Failure to Army medical retirement at 100%. The applicant entered the Army with three preexisting issues: He had previous knee surgeries, a BH condition with poor coping skills, and he was overweight. He entered a unit with high physical demands that challenged his knee capabilities. He had the following diagnoses and surgeries/procedures prior to service: Diagnosis: Right Knee Patellofemoral Malalignment with Instability 12 November 2015 Status Post Open Fulkerson Osteotomy/Open Medial Patellofemoral Ligament Reconstruction 5 February 2016 Arthrofibrosis-Status Post Lysis of Adhesions Diagnoses: Left Knee Recurrent Patellofemoral Instability with Malalignment and Chondromalacia Left Patella 15 January 2016 S/P Chondroplasty Patella, Open Fulkerson Osteotomy/Open Medial Patellofemoral Ligament 2. Based on review of the applicant’s knee condition, his records show the knee pain did not appear to be constant - there were visits when the applicant either did not mention knee pain or denied physical/knee pain (20 September 2018, 15 October 2018 Robinson Clinic, 16 October 2018 CDBHE, 14 November 2018). During the 9 November 2018 Ortho Carolina visit, the specialist recommended a very limited running profile for a substantial time; exercises to strengthen his quads (4 muscles in the thigh); ice (for inflammation); and avoid lunges or knee extensions exercises. It was anticipated that with this plan, the applicant could meet military requirements and maintain function without worsening his symptoms. The 4 December 2018 Physical Therapy note showed normal gait; knee strength and range of motion were within functional limits; and there was no palpable tenderness. He was diagnosed with Bilateral Knee Pain and was placed on a home exercise program. He reported being on a permanent profile already. On 24 January 2019, (one month after discharge from service) C&P Knee and Lower Leg Conditions DBQ showed diagnosis: Bilateral Knee Strain with Right Knee Flexion 0 to 130 and Left Knee Flexion 0 to 135 (normal 0 to 140). Bilateral knee strength was 5/5 and there was no instability for both knees. The applicant reported improvement in symptoms after discharge. Review of records showed there was no discrete injury during service. Some of the anatomy involved in the knee symptoms is the same involved in the pre military corrective surgeries. Indeed prior to service, the applicant was diagnosed with Chondromalacia Left Patella, and this diagnosis and Patellofemoral Pain Syndrome are both sometimes called "runner's knee”. This condition existed prior to service and was temporarily aggravated by service. He was placed on a no running, no jumping, or Military Movement Drills temporary profile and a Walk to Run Progression program 28 November 2018. 3. As it relates to the applicant’s BH condition(s), the applicant reported stress concerning his knee pain which was further increased when he became a person of interest as one of three of the people thought to be responsible for the loss of equipment which contained sensitive information. He was subsequently cleared but he remained stressed. He also reported receiving several negative counseling related to failure to listen to instruction, lying, poor overall performance, and tardiness. Although his family was supportive, he reported few social supports, he felt alienated by others, and reported being described as “impossible to work with.” Due to the stress he entered BH treatment during which finding the right medication and dosage proved problematic. He reported atypical symptoms and/or reactions to medication (e.g. body pain all over, drooping face, fainting to which medical providers to include cardiology and neurology services found no diagnosis) and in addition, personnel assessed that he reported symptoms in access of what they observed. During some visits, he reported extensive pre-military BH history from middle school through high school in some encounters but denied such in others. He reported being diagnosed with Anxiety, Asperger’s and ADHD; thoughts of suicide since middle school; and a history of sexual abuse from babysitters. A Command Directed BH Evaluation on 16 October 2010 showed his MMPI (a psychological test that assesses personality traits and psychopathology) was invalidated due to multiple indicators of intentional over reporting. He was assessed as not having a fitness for duty issue but instead he met criteria for Occupational Problem per DSM-5. It was recommended that Command pursue separation by chapter 14 (separation for misconduct). On 14 November 2018 he divulged that he had experienced a mental “breakdown” in 2014 that lasted 2 years during which he stated that he didn’t go outside and worked an online job. 16 November 2018 Report of Mental Status Exam showed no duty limitations due to behavioral health reasons. He was determined to currently MEETS medical retention standards and was cleared for administrative action. He had the following restrictions on his 22 November 2018 temporary profile for 12 months for Altered Consciousness that included but was not limited to: * ensure 8 hours of consecutive sleep in a twenty-four-hour period * no twenty-four-hour military duties * no duty day longer than twelve hours * no driving military vehicle, firing a weapon or participating in live fire exercises * no deployment 4. On 3 December 2018, a WAMC Department of Behavioral Health Therapy psychiatric intake shows his DSM-5 diagnoses were: Other problems related to employment and Rule Out diagnoses related to reported hallucinations/delusions. He was determined to NOT MEET medical retention standards IAW AR 40-501, Paragraph 3-31 through 3-37. He was also determined not deployable. While in service under the weight control program, the applicant admitted to using food as a coping mechanism (31 January 2018, 17 September 2018, January 2019). It was claimed that the applicant was not notified in a timely manner of the intent to separate him for not meeting height/weight standards and secondly for not taking proper measurements but instead just “eyeballing him”. There were initial concerns about the applicant’s weight such that the in-processing paper work contained three different DA Form 5500 (Percent body fat: 4 April 2017 23%; 07 May 2017 24%; 1 May 2017 24%). The reviewer cannot explain why the maximum allowable percent body fat was listed as 26% for the in-processing paper work and as 22% when discharged. According to AR 600-9, Table B-2, the maximum allowable percent body fat for his gender and age is 22%, the value used at discharge. If the 22% value were used during in-processing, then he would not have met standards. The applicant attended a nutrition class appointment 14 February 2018 at the Army Wellness Center. On 13 March 2018 he attended an appointment for metabolic analysis where his BMI placed him in the Obese Range. On 9 May 2018 the applicant was officially found to be not in compliance with Army Standards with Body Fat Content Worksheet (DA Form 5500) showing 25% Body Fat (max allowed 22). He was counseled on that date and a flag was initiated. On 10 May 2018, he signed the Soldier Action Plan for the Army Body Composition Program (ABCP). On that same date, Command requested ABCP Medical Evaluation. He enrolled in the program and on 19 June 2018 while a BMI calculation placed him in the overweight category a concurrent BOD POD analysis showed Body Fat Percentage: 20.0 % which placed him in the Moderately Lean Category. 5. On 26 June 2018 Body Fat Content Worksheet (DA Form 5500) showed 21% Body Fat (max allowed 22); therefore, he was in compliance. 26 June 2018 his personnel flag was removed and he was advised that if he exceeded body fat standards within 12 months, a flag will be initiated and separation or bar to continued service would be initiated. He was scheduled for a follow-up Army Wellness Center visit for BOD POD on 8 August 2018 but he did not show for the appointment. That visit was crucial to assess his weight loss progress/maintenance, especially since previous BOD POD results had provided a more favorable analysis of his percentage body fat. After missing that appointment, the record showed a flurry of 7 emergency room/walk-in mental health related visits from 21 August 2018 to 2 October 2018. On 2 October 2018, he was advised of the recommendation for his involuntary separation under chapter 5-17 (Other designated physical or mental conditions) per counseling. On that same day he was seen in the emergency room and was diagnosed with Adjustment Disorder with Anxiety. On 22 October 2018 he was seen in the emergency room and was diagnosed with Adjustment Reaction. 23 October 2018 Body Fat Content Worksheet (DA Form 5500) showed 32% Body Fat and a flag was initiated per ABCP failure. On that date a memo stated that he had been informed and counseled of the intent to separate him under the provisions of AR 635-200, Chapter 18 ABCP Failure. On 5 November 2018 it was recommended to separate the applicant for Failure to Meet Weight Control Standards. On 24 January 2019, Mental Disorders C&P DBQ showed the following BH diagnoses: Adjustment disorder with Anxiety and Autism Spectrum Disorder. The BH examiner determined his BH condition caused occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The VA requested a Medical Opinion concerning whether the applicant’s BH condition was service connected on not and their summary is as follows: * Asperger’s Syndrome- a neurodevelopmental disorder that develops in childhood * ADHD- diagnosed and treated as a child * Adjustment Disorder- he reported a severe episode of social withdrawal and low mood, loss of interests while in service. However, he also divulged a similar but less severe episode began just prior to entrance into the military during which he remained in his room for nearly one month. * They opined that the applicant’s diagnoses predated military service and that there was no indication that symptoms were aggravated beyond natural progression. 6. The JLV search showed that the applicant is service connected by the VA at 30% total combined for Flat Foot Condition (20%) and Bronchial Asthma (10%). It is noted that the applicant is not rated for the bilateral knee condition nor for a BH condition. The knee condition existed prior to service for which there was a waiver approved 11 April 2017, and cleared by orthopedics. The knee condition was not permanently aggravated by service. The Bilateral Patellofemoral Knee condition met retention standards in accordance with AR 40-501 chapter 3 as there was a positive prognosis if given time and appropriate treatment. In contrast, the applicant could have been separated for either the BH condition(s) or due to failure in the weight control program. The applicant’s BH conditions were present before military service. In some respects, he functioned better in the military (he was not house bound and he was not suicidal); however, he did seek emergency/urgent BH services frequently. His BH condition(s) were considered worsened but not beyond natural progression. The BH condition(s) did NOT MEET retention standards (AR 40-501, 3-36), as they did not respond well to various treatment methods and significantly interfered with performance. The specific BH conditions include Asperger’s Syndrome, ADHD, an undiagnosed 2-year mental health condition that kept him house bound for 2 years, and a more brief episode just 17 September 2018 (not Chronic Adjustment Disorder) which is not a boardable mental health condition but may serve as the basis for administrative separation if recurrent and causing interference with military duty. Although the applicant’s BH conditions overwhelmingly had more direct negative impact on performance, the applicant’s struggle with weight issues was more pervasive throughout his military career and it is noted he had to go through a few rounds of measurements to assess whether he qualified for service or not during in-processing. He was only briefly in compliance in June 2018 so it does seem appropriate that the applicant was separated for the Army height/weight non-compliance. Medical conditions that may contribute to difficulty losing weight were ruled out (e.g. thyroid dysfunction and impaired glucose tolerance). In the reviewer’s opinion, the applicant’s medical conditions were duly considered during separation processing. But again, the applicant could have been separated by chapter for the Adjustment Disorder as opposed to the weight control failure. And it would not be inaccurate to conclude that his BH condition(s) contributed to his failure in ABCP because he stated that he used food as a coping mechanism for his stress. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that partial relief was warranted. The Board carefully considered the applicants request, supporting documents, evidence in the records and a medical advisory opinion. The Board considered the applicants statement, counsel contentions, his record of service, regulatory guidance and public law. The Board considered the medical records, documents provided by the applicant, counsel and the review and conclusion of the advising official. The Board concurred with the medical advisory opinion finding sufficient evidence that the applicant could have been separated by chapter for the Adjustment Disorder as opposed to the weight control failure. And it would not be inaccurate to conclude that his BH condition(s) contributed to his failure in ABCP. Based upon the preponderance of the evidence, the Board determined the applicant’s record should be referred to the Office of the Surgeon General for medical evaluation and consideration, with all relief dependent upon a final medical determination. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by referring his records to The Office of the Surgeon General for review to determine if he should have been discharged or retired by reason of physical disability under the Integrated Disability Evaluation System (IDES). a. In the event that a formal physical evaluation board (PEB) becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB. All required reviews and approvals will be made subsequent to completion of the formal PEB. b. Should a determination be made that the applicant should have been separated under the IDES, these proceedings will serve as the authority to void his administrative separation and to issue him the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowances and/or retired pay, less any entitlements already received. 12/4/2020 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. REFERENCES: 1. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 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. 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 stipulated in a medical evaluation board; when they receive a permanent medical profile rating of 3 or 4 in any physiological or psychological factor and are referred by an Military Occupation Specialty Medical Retention Board (MAR2); 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. 3. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) published on 19 January 2017 prescribes 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 implements the requirements of Title 10, U.S. Code, chapter 61; Department of Defense Instructions (DoDI) 1332.18 (Disability Evaluation System (DES)); DoD Manuel 1332.18 (DES Volumes 1 through 3) and Army Directive 2012-22 (Changes to Integrated Disability Evaluation System Procedures) as modified by DoDI 1332.18. a. The objectives are to maintain an effective and fit military organization with maximum use of available manpower; provide benefits to eligible Soldiers whose military service is terminated because of a service-connected disability; provide prompt disability evaluation processing ensuring the rights and interests of the Government and Soldier are protected; and, establish the Military Occupational Specialty Administrative Retention Review (MAR2) as an Army pre-DES evaluation process for Soldiers who require a P3 or P4 (permanent profile) for a medical condition that meets the medical retention standards of Army Regulation 40-501. b. Public Law 110-181 defines the term, physical DES, as a system or process of the DoD for evaluating the nature and extent of disabilities affecting members of the Armed Forces that is operated by the Secretaries of the military departments and is composed of medical evaluation boards, physical evaluation boards, counseling of Soldiers, and mechanisms for the final disposition of disability evaluations by appropriate personnel. c. The DES begins for a Soldier when either of the events below occurs: (1) The Soldier is issued a permanent profile approved in accordance with the provisions of Army Regulation 40–501 and the profile contains a numerical designator of P3/P4 in any of the serial profile factors for a condition that appears not to meet medical retention standards in accordance with AR 40–501. Within (but not later than) 1 year of diagnosis, the Soldier must be assigned a P3/P4 profile to refer the Soldier to the DES. (2) The Soldier is referred to the DES as the outcome of MAR2 evaluation. d. A medical evaluation board is convened to determine whether a Soldier’s medical condition(s) meets medical retention standards per Army Regulation 40-501. This board may determine a Soldier’s condition(s) meet medical retention standards and recommend the Soldier be returned to duty. This board must not provide conclusions or recommendations regarding fitness determinations. e. The physical evaluation board determines fitness for purposes of Soldiers retention, separation or retirement for disability under Title 10, U.S. Code, chapter 61, or separation for disability without entitlement to disability benefits under other than Title 10, U.S. Code, chapter 61. The physical evaluation board also makes certain administrative determinations that may benefit implications under other provisions of law. f. Unless reserved for higher authority, the U.S. Army Physical Disability Agency approves disability cases for the Secretary of the Army and issues disposition instructions for Soldiers separated or retired for physical disability. 4. Army Regulation 40-501 (Standards of Medical Fitness) provides information on medical fitness standards for induction, enlistment, appointment, retention, retirement and related policies and procedures. Chapter 3 describes the various medical conditions and physical defects which may render a Soldier unfit for further military services. These medical conditions and physical defects, individually or in combination, are those that significantly limit or interfere with the Soldier’s performance of duty; may compromise or aggravate the Soldier’s health or well-being, if they were to remain in the military Service such as frequent clinical monitoring; may compromise the health or well-being of other Soldiers; and may prejudice the best interest of the Government if the individual were to remain in the military Service. Soldiers who do not meet the required medical standards will be evaluated by a medical evaluation board. a. A Soldier will not be referred to a medical evaluation board or a physical evaluation board because of impairments that were known to exist at the time of acceptance in the Army and that have remained essentially the same in degree of severity and have not interfered with successful job performance. b. The general policy states that possession of one or more of the conditions listed in this chapter does not mean automatic retirement or separation from the Service. Physicians are responsible for referring Soldiers with conditions in this chapter to a medical evaluation board. c. Paragraph 3-13 refers to the lower extremities stating causes for referral to a medical evaluation board. Subparagraph 3-13c pertains to the internal derangement of the knee stating residual instability following remedial measures, if more than a moderate degree and the joint range of motion for the knee flexion to 90 degrees or extension to 15 degrees. The range of motion measurements should be obtained using a goniometer. Subparagraph 3-13f states recurrent dislocations of the patella are cause for referral to a medical evaluation board. d. Paragraph 3–32 refers to mood disorders and paragraph 3-33 refers to anxiety, somatoform, or dissociative disorders providing the following criteria is met: * persistence or recurrence of symptoms sufficient to require extended or recurrent hospitalization * persistence or recurrence of symptoms necessitating limitations of duty or duty in protected environment * persistence or recurrence of symptoms resulting in interference with effective military performance e. Paragraph 3-36 refers to adjustment disorders and states situational maladjustments due to acute or chronic situational stress do not render an individual unfit because of physical disability (emphasis added), but may be the basis for administrative separation if recurrent and causing interference with military duty. 5. Title 10, U.S. Code, section 1201 or section 1204, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent or higher. Title 10, U.S. Code, section 1203 or 1206, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 6. Army Regulation 635-200 sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance. This regulation provides the authority and general provisions governing the separation of Soldiers before their expiration of term of service or fulfillment of active duty obligation to meet the needs of the Army and its Soldiers. a. Chapter 18 (Failure to Weight Control Standards) prescribes policies and procedures for separating Soldiers who fail to meet body fat standards, as outlined in AR 600-9 (The Army Body Composition Program) and reflected in counseling or personnel records. Separation under this paragraph is involuntary. Commanders will initiate separation proceedings for Soldiers who fail to meet body fat standards during the 12-month period following removal from the program, provided no medical condition exists. Soldiers separated under this chapter will receive an honorable characterization of service. b. Chapter 18 states the notification procedures outlined in Chapter 2 (Procedures for Separation), Section I (Notification Procedures) will be followed including notifying the Soldier in writing for the reason and allegations for separation using the memorandum examples outlined in this chapter. Among the requirements, the Soldier will be advised of their rights to include consulting with counsel. 7. Army Regulation 600-9 in effect at the time established the policies and procedures for the implementation of the Army Body Composition Program. The primary objective of this program is to ensure all Soldiers achieve and maintain optimal well-being and performance under all conditions. Soldiers must maintain a high level of physical readiness in order to meet mission requirements. Body composition is one indicator of physical readiness that is associated with an individual’s fitness, endurance, and overall health. Soldiers are required to meet the prescribed body fat standards, as indicated in this regulation, with minimal screening every 6 months. The only authorized method of estimating body fat is the circumference-based tape method outlined in this regulation. Commanders do have the authority to direct a body fat assessment on any Soldier that they determine does not present a soldierly appearance, regardless of whether or not the Soldier exceeds the screening table weight for his measured height. //NOTHING FOLLOWS//