IN THE CASE OF: BOARD DATE: 28 June 2023 DOCKET NUMBER: AR20220009957 APPLICANT REQUESTS: correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was medically retired in lieu of discharged under the provisions of chapter 18, Army Regulations (AR) 635-200, due to weight control failure. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 2648 (Service Member Pre-Separation/Transition Counseling and Career Readiness Standards Eform for Service Members Separating, Retiring, Released from Active Duty (REFRAD)) * two memoranda, subject: Commander's Report - Proposed Separation Under AR 635-200, Chapter 18, Failure to Meet Weight Control Standards * DD Form 214 * VA Rating Decision, 5 February 2020 * Department of Veterans Affairs (VA) Benefits Letter, 7 February 2020 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) 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 prior to discharge, his primary care manager (PCM) wished to have him medically boarded due to permanent injuries he sustained to his skeletal structure making it difficult to perform duties. He was also on a permanent profile due to the injuries he sustained. However, his chain of command wanted to discharge him under the provisions of chapter 18 instead. 3. The applicant provided the following: a. A VA Rating Decision, dated 5 February 2020, showing service connection for the following conditions was granted, effective 3 August 2019: * persistent depressive disorder, rated 30% * left shoulder strain (also claimed as painful joints), rated 20% * right shoulder strain (also claimed as painful joints), rated 20% * left ankle sprain (claimed as painful joints), rated 10% * lumbosacral spine strain (also claimed as painful joints), rated 10% * right ankle sprain (also claimed as painful joints), rated 10% * right hip strain, with painful motion (also claimed as painful joints and fracture), rated 10% * right knee strain (also claimed as painful joints), rated 10% * tinnitus (claimed as ears ringing), rated 10% b. A VA Benefits Letter, dated 7 February 2020, showing the following conditions with a combined rating of 80 % was granted, effective 3 August 2019. 4. The applicant served honorably in the Regular Army (RA) from 24 June 2014 to 6 June 2017 until he was separated for immediate reenlistment. He had completed 2 years, 11 months, and 13 days of total active military service and 1 year, 1 month, and 17 days of total inactive military service. 5. On 7 June 2017, he reenlisted in the RA for 5 years in pay grade E-4. He held military occupational specialty 15T (UH-60 Helicopter Repairer) 6. The applicant was enrolled in the Army Body Composition Program and successfully completed the program on 2 July 2018, at which he was removed from the program. Within 12 months from his initial enrollment, he was reenrolled in the Army Body Composition Program on 4 December 2018. 7. The applicant was counseled on: 13 June 2018, 2 July 2018, 18 December 2018 (twice), and 23 January 2019. 8. An undated memorandum confirms the applicant's immediate commander notified him of his intent to initiate separation actions against him under the provisions of AR 635-200 (Personnel Separations – Enlisted Personnel), Chapter 18, for failure to meet Army body fat standards. His reports of medical and mental status evaluation were attached to the memorandum at the time but are not in the available record. The commander also stated: * he did not consider it feasible or appropriate to accomplish [any] other disposition * the applicant had demonstrated by his actions that he could not uphold the Army standard * the applicant’s actions made him unavailable for world-wide contingency operations disposition by any other means was not feasible 9. The applicant’s immediate commander formally recommended his separation under the provisions of AR 635-200, Chapter 18. The separation approval authority approved the separation prior to his expiration term of service. 10. On 2 August 2019, the applicant was honorably discharged, under the provisions of AR 635-200, chapter 18, by reason of weight control failure with a separation code of “JCR.” 11. The applicant also provided the following separation processing documents: A DD Form 2648, two memoranda, and a DD Form 214; his submissions were submitted to the Board in their entirety. 12. The Army rates only conditions determined to be physically unfitting at the time of discharge, which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA may compensate the individual for loss of civilian employability. 13. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice on the part of the Army. 14. Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. 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. 15. MEDICAL REVIEW: a. The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: b. The applicant is applying to the ABCMR requesting a change in his separation authority and, in essence, a referral to the Disability Evaluation System. He states: “Prior to discharge, my PCM's [primary care manager] wished to MEDBOARD me due to permanent injuries sustained to skeletal structure making it difficult to perform duties and was on a permanent profile due to the injuries sustained. Chain of command rather wished to give me a chapter 18 instead.” c. The Record of Proceedings details the applicant’s military service and the circumstances of the case. His DD 214 for the period of Service under consideration shows he entered the regular Army on 24 June 2014 and was honorably discharged on 2 August 2019 under provisions in chapter 18 of AR 635-200, Active Duty Enlisted Administrative Separations (17 December 2009): Failure to Meet Weight Control Standards. d. The only medical documents submitted with the application are his pre-entrance Report of Medical History Report on Medical Examination which show the applicant to have been in good health, without any significant medical history or conditions. His height was 69.25 inches and his weight was 166 pounds with minimum and maximum weights of 124 and 184 pounds respectively. e. From his commander’s undated recommendation the applicant be separated under chapter 18 of AR 635-200: “Specific, factual reason(s) for action recommended: On 12 June 2018, SPC {Applicant} was enrolled in the Army Body Composition Program. SPC {Applicant} successfully completed the program on 2 July 2018, at which time SPC {Applicant] was removed from the program. Within 12 months from his initial enrollment, SPC {Applicant} was reenrolled in the Army Body Composition Program on 4 December 2018 ... Record of counseling: 23 January 2019, 18 December 2018 x 2, 2 July 2018, 13 June 2018.” f. Paragraph 3-2k(1)(a) of AR 600-9, The Army Weight Control Program (27 November 2006): “Within 12 months following removal from the AWCP and no underlying or associated disease process is found as the cause of the condition, the unit commander will initiate separation proceedings.” g. Paragraphs 18-2a and 18-2b of AR 635-200: “(1) 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. (2) 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 AR 600–9, separation proceedings will be considered.” h. The applicant was evaluated for enrolment into the Army Body Composition Program (ABCP) on 19 April 2019. No significant medical issues other than adjustment order and left shoulder pain were noted, and there were no findings documented in the review of systems or physical examination. From this encounter: 23-yeear-old active-duty male presents to clinic for ABCP Memo. SM [service member] does not have any new issues or symptoms to report at this time … Reviewed medical history and lab work. SM is in overall good health. Physical examination unremarkable. SM medically cleared to enroll in ABCP. Memorandum provided to soldier and CoC [Chain of Command]. Reports already seen by nutrition. Counseled SM on importance of managing a healthy weight. Discussed safe weight loss goal of no more than 2 pounds per week, proper hydration, exercise goals of 120+ minutes per week of moderate intensity exercise, and a balanced diet. SM will f/u [follow-up] as needed, agrees to plan and acknowledges understanding. 2. Pain in unspecified shoulder: SM wants to discuss MRI for shoulder pain. Reports seeing MAJ . for impingement of his bilateral shoulders. Says he has intermittent sharp pain when driving. SM reports he is not doing home-exercises.” i. No MRI results were in AHLTA. j. The applicant claims skeletal injuries prevented him from participating in the AWCP and a submitted VA Rating Decision dated 5 February 2020 shows the applicant has been granted multiple service-connected disability ratings for a variety of minor musculoskeletal issues. However, Paragraph 3-2d(4) of AR 600-9: “The use of certain medications to treat an underlying medical disorder or the inability to perform all aerobic events may contribute to weight gain but are not considered sufficient justification for noncompliance with this regulation.” k. Paragraph 3-2d(4)(e) of AR 600-9 requires the examiner to “Determine whether an individual’s condition is medically disqualifying for continued service. If the Soldier does not meet medical retention standards of AR 40-501, chapter 3, the Soldier will be referred to an MEB/physical evaluation board (PEB).” The 19 April 2019 examination clearly met this requirement. l. There is no evidence the applicant had an injury or any other condition failed the medical retention standards of chapter 3, AR 40-501, Standards of Medical Fitness prior to his discharge. Furthermore, there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. m. Review of his records in JLV shows he has been awarded multiple VA service- connected disability ratings. However, the DES compensates an individual only for service incurred medical condition(s) which have been determined to disqualify him or her from further military service. The DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions which were incurred or permanently aggravated during their military service; or which did not cause or contribute to the termination of their military career. These roles and authorities are granted by Congress to the Department of Veterans Affairs and executed under a different set of laws. n. It is the opinion of the ARBA Medical Advisor that neither a change in his separation authority nor a referral of his case to the DES is warranted. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. The governing regulation provides that the use of certain medications to treat an underlying medical disorder or the inability to perform all aerobic events may contribute to weight gain but are not considered sufficient justification for noncompliance with the regulation. Upon review of the applicant’s petition, available military records and the medical review the Board concurred with the advisory official finding there is no evidence the applicant had any permanent medical condition which would have failed the medical retention standards of chapter 3, AR 40-501 prior to his discharge. The Board further noted there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. The applicant is advised the DD Form 214 shows circumstances as they were on the date prepared. Based upon a preponderance of the evidence, the Board determined there is insufficient evidence that shows a medical retirement was warranted during his period of active service. 2. The Board agreed that the VA provides post-service support and benefits for service- connected medical conditions. The VA operates under different laws and regulations than the Department of Defense (DOD). In essence, the VA will compensate for all service-connected disabilities. ? 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, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) indicates the separation code “JCR” is reflective of an involuntary separation under the provisions of AR 635-200, Chapter 18, for weight control failure. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 18 provides that separation action may not be initiated under this chapter until the Soldier has been given a reasonable opportunity to comply with and meet the body fat standards. If no medical condition exists, initiation of separation proceedings is required for Soldiers who do not make satisfactory progress in the program after a period of 6 months. The service of Soldiers separated per this chapter will be characterized as honorable. 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum. However, this guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. a. 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 on the basis of equity, injustice, or clemency grounds, Boards 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. b. 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. 5. 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 (Disability 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. 6. 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. 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. 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. 7. Army Regulation 40-501 provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures. Soldiers with conditions listed in chapter 3 who do not meet the required medical standards will be evaluated by an MEB and will be referred to a PEB as defined in Army Regulation 635–40. 8. Title 10, U.S. Code, section 1201, 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. Title 10, U.S. Code, section 1203, 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. 9. Title 38, U.S. Code, section 1110 (General – Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 10. Title 38, U.S. Code, section 1131 (Peacetime Disability Compensation – Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 11. Title 10, U.S. Code, section 1201, 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. Title 10, U.S. Code, section 1203, 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. 12. Title 10, U.S. Code, section 1556 requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220009957 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1