APPLICANT REQUESTS:  That the Board reverse its previous action which denied his application for failure to timely apply, and consider the merits of the application regarding his requests for removal of a Headquarters, Department of the Army (HQDA), bar to reenlistment and reinstatement on active duty, in pay grade E-6, with retroactive pay and allowances to 31 March 1986.  Also, he now requests, in effect, placement on the permanent disability retired list, removal of the enlisted evaluation report (EER) covering the period September 1977-August 1978 as a partial basis for the HQDA bar to reenlistment, and the award of the Good Conduct Medal (6th Award).  In a comprehensive statement, he alleges, in effect, that he was inappropriately identified as being overweight; that his preexisting medical condition and history were not used as factors in the management of his career; that his bar to reenlistment was based on erroneous EER’s; that the EER’s show that his whereabouts were in contradiction to the record of assignments on his DA Form 2-1 (Personnel Qualification Record - Part II); and that his weight was never the issue at hand for barring him for reenlistment under the Qualitative Management Program (QMP).

PURPOSE:  To determine if the new information and/or contentions now submitted by the applicant, when added to the information already available, contains sufficient justification to conclude that the application was filed within the time required, or if not, whether it could be in the interest of justice to excuse the applicant’s failure to file his original application which had been denied by the Board.

NEW EVIDENCE OR INFORMATION:  In support of the current request, the applicant has submitted new evidence and new issues.

Incorporated herein by reference are military records which are summarized in a memorandum presented before this Board on 23 October 1991 (COPY ATTACHED).

During the applicant’s prior period of service from 28 May 1970 through 6 April 1972, he was awarded the Good Conduct Medal.

General Orders 256, dated 9 February 1976, awarded the applicant the Good Conduct Medal (2d Award) for the period 20 December 1972 through 19 December 1975.

On 21 November 1979, that applicant was found medically qualified for duty with limitations and given a physical profile of 11T3111 for joint disease.

On 11 February 1980, the applicant was found medically qualified for duty with permanent assignment limitations and given a physical profile of 11P3111 for both moderate flat feet and left foot moderate arthritis.

Consultation Sheets, dated 20 January and 14 July 1983, indicate that the applicant had attended the active duty weight control diet class and had been given guidelines for weight reduction.  On a Report of Medical History, dated 17 May 1983, the applicant indicated that he had been on the Army’s Overweight Program from November 1982 through February 1983.

On 6 July 1984, physical profile board proceedings were approved changing the applicant’s previous permanent profile of 11P3111 to a permanent profile of 11P2111 without limitations for bilateral flat feet with arthritis of the left foot.

Permanent Orders 45-32, dated 14 May 1980, awarded the applicant the Good Conduct Medal (3d Award) for the period 20 December 1975 through 19 December 1978.

Permanent Orders 79-3, dated 26 June 1981, as amended by Permanent Orders 138-48, dated 22 December 1981, awarded the applicant the Good Conduct Medal (4th Award) for the period 19 December 1978 through 18 December 1981.
On 5 November 1984, the applicant received a Certificate of Achievement from the commander of the 8th Infantry Division (Mechanized), U.S. Army, Europe, and Seventh Army (a major general) for outstanding achievement during the period 
20-23 August 1984 since his section received its best rating from U.S. Army Europe Postal Inspectors in 2 and 1/2 years.

Permanent Orders 120-3, dated 29 November 1984, awarded the applicant the Good Conduct Medal (5th Award) for the period 19 December 1981 through 18 December 1984.

Permanent Orders 58-4, dated 23 April 1985, awarded the applicant the Good Conduct Medal (4th Award) (sic) for the period of service from 29 December 1981 through 28 December 1984.  (Note:  A portion of this period is the same as the period for the Good Conduct Medal (5th Award.)

On 2 July 1985, the applicant’s commander requested that a body fat content be measured and a medical evaluation be conducted in accordance with Army Regulation 600-9 since the applicant exceeded the weight for height tables by 22 pounds. Subsequently, a physician’s advised the applicant’s commander that the applicant exceeded the percent body fat standard by l.2 percent; that the applicant’s maximum allowable weight was 182 pounds in his age category; that the applicant was fit for participation in the weight control/physical exercise program; that the cause of his overweight condition was not due to a medical disorder; that a weight control program was recommended; that the applicant had been advised that the lost of 14 pounds within 3-6 months was determined to be a realistic goal; that the applicant’s present weight was 198 pounds; and that the scheduled loss per month should be four pounds.

A Medical Record-Supplemental Medical Data, dated 8 August 1985, indicated that a body fat composition was made; that the applicant was overweight; and that he required a total weight loss of 16 pounds to be in compliance with Army standards.
On 9 August 1985, the applicant was advised that it had been determined that he was overweight; that a total of 4 pounds of weight loss per month had been established; that his maximum allowable weight was 182 pounds; that the weight should be attained no later than 3-6 months from that date; and that failure to achieve his maximum allowable weight could result in separation from the service.  On the same day, the applicant acknowledged that he understood his responsibilities to achieve the maximum allowable weight recorded periodically or during unit training assemblies as applicable.

A General Counseling Form indicated that the applicant was officially entered into the overweight program on 9 August 1985; that the applicant was found to exceed his maximum allowable weight by 16 pounds; and that he was counseled by his company commander on 9 August 1985.  The commander advised him that he was flagged in accordance with Army Regulation 600-31; that the flag would be lifted when he achieved his maximum allowable weight or percent body fat standard; that he would not be promoted, be allowed to reenlist, or be admitted to a professional military school as long as he was enrolled in the overweight program; that he would be considered for separation if he did not achieve any weight loss for 2 consecutive months or if he failed to achieve his maximum allowable weight in 6 months; that he would report to the orderly room once a month for a weigh-in; that there was no place in today’s Army for overweight soldiers; and that he should get motivated and lose the weight.

A DA Form 168 (Report for Suspension of Favorable Personnel Actions), dated 15 August 1985, indicated that the applicant entered the Army Weight Control Program on 9 August 1985 in accordance with Army Regulation 600-9, and that the current investigation was initiated on 9 August 1985.

A Consultation Sheet, dated 5 September 1985, indicated that the applicant had been referred to the Dietary Clinic on 8 August 1985 because of inclusion in the Army Overweight Program; that the applicant’s height was 68; that his weight was 198; that the maximum allowable weight was 182; and that he was counseled and provided pertinent information by a registered dietitian.

A Medical Record-Supplemental Medical Data, dated 25 November 1985, indicated that a body fat composition was made; that the applicant was overweight; and that he required a total weight loss of seven pounds to be in compliance with Army standards.

On 15 January 1986, physical profile board proceedings were approved for the applicant giving him a permanent physical profile of 11P3111 for arthritis of the left foot.

A 4th Endorsement, dated 23 February 1986, by the division surgeon, indicated that he recommended disapproval of the request for the applicant’s elimination under Army Regulation 635-200, paragraph 5-15; that, during the applicant’s initial caliper evaluation on 8 August 1985, an error was made in computing his maximum allowable weight; that the correct maximum allowable weight should have been 191 pounds and not 182 pounds; that the error of 9 pounds had been discussed with the applicant; that his attitude concerning the weight program was influenced by the initial incorrect maximum allowable weight of 182 pounds which he felt was unrealistic; that he stated that a more realistic goal of 191 pounds could be met if continued on the weight program; that there were no provisions in Army Regulation 600-9 to cover errors in caliper computations; that it was suggested that the applicant be extended in the weight control program with monthly weigh-ins; and that, if successful progress was not made, then at that time he should be considered for elimination.

A Medical Record-Supplemental Medical Data, dated 5 March 1986, indicated that a body fat composition was made; that the applicant was overweight; and that he required a total weight loss of 10 pounds to be in compliance with Army standards.

On 18 March 1986, having been advised by a physician of the basis for his separation physical and its effects, the rights available to him and the effect of a waiver, the applicant indicated that he understood that he was not required to undergo a medical examination for separation from active duty, however, he could request a physical examination; that, if he elected not to undergo a separation examination, he also understood that his medical records would be reviewed by a physician at the appropriate medical treatment facility; that, if the review indicated that an examination should be accomplished, he would be scheduled for an examination based on the results of the review; and that he did not desire a separation medical examination.

In the memorandum presented before this Board on 21 October 1991, the scores of the EER’s were furnished.  Since five of the applicant’s EER’s were shown as a partial basis for the HQDA bar to reenlistment, detailed information regarding his EER’s that contain unfavorable comments are as follows:

	Period	      Score	Duty Military Occupational 
			  			Specialty (MOS) and Position 							Title

	Oct 75-Nov 76   103.5    13E20 “Recon Sgt”*
	Sep 77-Aug 78    75      11C20 Forward Observer**
	Apr 79-May 81	 118      71L30 “Admin NCO”***
	May 82-Apr 83   120.5    71L30 “NCOIC BSEP/ASVAB
 				                Classes”****
	May 83-Mar 84   116.5    71L30 “Admin NCO”*****
	Apr 84-Dec 84    96.5    71L30 “Postal NCO”******
	Jan 85-Dec 85    90      71L40 “NCOIC Driver’s
					           Testing Sta”*******
__________
*The rater stated that the applicant had not performed his duties as was expected of him; that his work was never done on time; that he needed constant supervision for the completion of all duties assigned; and that he had not demonstrated any qualities of leadership.  The indorser stated that the applicant had made an effort to qualify himself in the MOS 13E20; that, however, through a combination of difficulty of the MOS, lack of proper facilities at the unit level; and his inability to grasp the essentials of the MOS, he had failed; that, in his estimation, the applicant had failed to demonstrate the required leadership traits of an NCO; that he should be returned for duty in his primary MOS 72E; and that he did not possess the qualities of leadership expected of an NCO in a combat unit.
**This is the EER that the applicant requests removed as one of the basis for the HQDA bar to reenlistment.  The rater stated that the applicant performed duties in an average manner, and that he needed to develop confidence in issuing orders and performance duties as a squad leader.  The indorser stated that the applicant was an “11C retrain coming to the infantry from a signal MOS;” that he had jobs as a 81mm squad leader and as a forward observer and could perform neither with very much success or expertise; that he lacked motivation as an 11C and as an infantryman; and that he needed confidence in himself and his skills to be able to perform in any leadership position he may get in the future.
***One of the basis for the HQDA bar to reenlistment.  The rater stated that the applicant must further develop his expertise in making sound decisions.
****One of the basis for the HQDA bar to reenlistment.  The rater stated that the applicant needed to concentrate on more in-depth analysis of problems that he must solve and weight various alternative solutions.
*****One of the basis for the HQDA bar to reenlistment.  The rater stated that the applicant should be more tactful and innovative in his dealings with people in order to attain better results; that he was late to training meetings on many occasions; and that he should make an effort to be more timely in the future.
******One of the basis for the HQDA bar to reenlistment.  The rater stated that the applicant had demonstrated poor performance as the NCOIC of the Mainz Army Post Office (APO;) that his initiative and efforts contributed little to raising the standards of the APO; that the lack of integrity, readiness, and self-discipline displayed by the applicant was a terrible example for his subordinates to follow; that, in that position, the applicant was consistently inefficient and seldomly obtained good results; and that he felt that the applicant had no potential to improve his qualities or standards.  The rater recommended that the applicant be assigned duties that required supervision of not more than one person.  (Note:  The rater was subsequently court-martialed and discharged from active duty.)  The indorser stated that the applicant had demonstrated a lack of leadership during that period; that he had difficulty in completing most assigned tasks numerous times; that he lost the respect of his subordinates mainly because he made unsound decisions; that he displayed poor military appearance; that he consistently mislead his subordinates; that his initiative to learn his job was not well taken; and that he felt that the applicant did not take a great deal of interest in postal or troop responsibilities.
*******The rater and the indorser stated that the applicant did not meet the provisions of Army Regulation 600-9; that the applicant had requested to be released from the U.S. Army; that the applicant should not be promoted; and that his apathy in the concerns of the U.S. Army prompted action for release from active duty.  Also, the rater indicated that the applicant had no further potential in the U.S. Army, and the indorser stated that the applicant did not exhibit the potential for further successful service in the U.S. Army.  
(Note:  A review of the applicant’s DA Form 2-1 indicates that he was assigned to the specific posts/areas as shown on his EER’s at the times the EER’s were rendered.)
__________
The other document, which was the basis for the applicant’s HQDA bar to reenlistment, was a DA Form 2-1, dated 18 July 1985.  At item 27, it showed his height as 67 inches and his weight as 196 pounds.

A letter, dated 30 April 1986, from the applicant’s career advisor at the U.S. Army Military Personnel Center advised the applicant that a review of his career management information file revealed that his EER for the period January-December 1985 was below the average for his grade and MOS; that the EER was a valuable tool used extensively by DA boards making decisions that effected his career and future potential; that a below average in EER’s could influence his eligibility for selection to advanced schools, special assignments, and even promotions; and that the problems, if left unchecked, could possibly result in selection under the QMP and subsequent DA bar to reenlistment.  (Note:  He received this after his discharge from active duty on 31 March 1986.)

On 3 April 1989, the Board of Veterans Appeals, indicated that the applicant had active service from May 1970 to April 1972 and from December 1972 to March 1986; that the applicant had a transitory psychotic episode during the first period of military service which was associated with antituberculous medication and was manifested by somatic delusions; that those symptoms were resolved; that, during the second period of military service, the applicant had depressive symptoms associated with a dietary change in his lifestyle; that a chronic acquired psychiatric disorder, including a psychosis, was not shown to have been present during either period of service nor had one been documented since his discharge in 1986; that the applicant had a transitory infection of the ears during each period of service, but a chronic active disease process of service origin, or residuals thereof, were not shown; that the applicant’s flat feet were no more than moderate in degree, with characteristic callosities or recent documentation of swelling; that x-rays had confirmed arthritis of the talonavicular joint of the left foot and clinical findings were consistent with moderate limitation of left ankle motion; that it concluded that an acquired psychiatric disorder was not incurred in or aggravated by active service, nor could a psychosis be presumed to have been so incurred; that a chronic ear infection was not incurred in or aggravated by active service; that the schedular criteria for an increased evaluation for bilateral pes planus had not been met; that the requirements for a separate 10 percent rating for arthritis of the left talonavicular joint had been met; that it determined that service connection for an acquired psychiatric disorder was denied; that service connection for residuals of an ear infection was denied; that an increased rating for bilateral pes planus was denied; and that a separate 10 percent evaluation for arthritis of the left talonavicular joint was granted, subject to applicable laws and regulations governing the award of monetary benefits.

The latest available Department of Veterans’ Affairs (VA) Rating Decision, dated 3 December 1990, indicated that the applicant was assigned a combined service-connected disability of 20 percent for bilateral pes planus (10 percent); degenerative arthritis, talonavicular joint, left (10 percent); herpes simplex “progenitilis,” asymptomatic (zero percent); and tinea pedis (zero percent) effective 1 April 1986.  Also, he was assigned non-service connection for residuals right hand injury and right hand problems; residuals bilateral knee, hip, leg problems; divergent excess with latent extrophia “(CDA);” residuals ear infection; hearing loss; organic pathology for complaints of fatigue, weakness, impaired balance; residuals bronchial infections and lung ailments; tuberculosis, positive Tine test; residuals gastrointestinal problems; residuals bladder infections and urinary tract infections; scars, palm right hand; dependent personality (personality disorder); and situational anxiety reaction.

A letter, dated 7 October 1993, from the VA indicated that the applicant was in receipt of disability compensation on account of service-connected disability rating at less than 30 percent.

Pertinent details of the applicant’s medical history and facts relating to the applicant’s contentions are contained in the Office of The Surgeon General (OTSG) and the Office of The Deputy Chief of Staff for Personnel (ODCSPER) advisory opinions (COPIES ATTACHED), which are incorporated herein and need not be reiterated.  Denial of the applicant’s requests for removal of the HQDA bar to reenlistment, reinstatement, and permanent physical disability retirement were recommended.

On 17 May 1996, the applicant was furnished copies of the staff advisory opinions from the OTSG and the ODCSPER for his information and possible rebuttal.  On 19 June 1996, he submitted comments, which are incorporated herein and need not be reiterated.

A review of the applicant’s records shows a discrepancy regarding his entitlement to subsequent awards of the Good Conduct Medal.  Therefore, the Commander, U.S. Army Reserve Personnel Center, will be requested to review his records and take appropriate administrative action regarding his entitlement to the subsequent awards of the Good Conduct Medal.  In this regard, an investigation and suspension of favorable personnel actions was initiated on 9 August 1985 since the applicant had been entered in the Army’s Weight Control Program.  Therefore, it appears that he is ineligible for any awards after that date.

Army Regulation 600-9, then in effect, established the policies and procedures for the implementation of the Army Weight Control Program.  It indicated that a suspension of favorable personnel actions would be initiated under Army Regulation 600-31 for personnel in a weight control program.

Army Regulation 600-31, then in effect, provided that favorable personnel actions would be suspended when a member was entered in a weight control program under Army Regulation 600-9.

Army Regulation 600-200, at chapter 4, sets forth policy and prescribes procedures for denying reenlistment under the QMP. This program is based on the premise that reenlistment is a privilege for those whose performance, conduct, attitude, and potential for advancement meets Army standards.  It is designed to (1) enhance quality of the career enlisted force, (2) selectively retain the best qualified soldiers to 30 years of active duty, (3) deny reenlistment to nonprogressive and nonproductive soldiers, and (4) encourage soldiers to maintain their eligibility for further service.  The QMP consists of two major subprograms, the qualitative retention subprogram and the qualitative screening subprogram.  Under the qualitative screening subprogram, records for grades E-5 through E-9 are regularly screened by the DA promotion selection boards.  The appropriate selection boards evaluate past performances and estimate the potential of each soldier to determine if continued service is warranted.  Soldiers whose continued service is not warranted receive a QMP bar to reenlistment.

Army Regulation 635-40, at paragraph 2-2b, then in effect, provided that, when a member was being separated by reason other than physical disability, his continued performance of duty created a presumption of fitness which could be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurred immediately prior to or coincident with separation, rendered the member unfit.

Title 10, U.S. Code, at chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of disability incurred while entitled to basic pay.
Title 10, U.S. Code, at section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.

Title 38, U.S. Code, at sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual’s medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

DISCUSSION:  After considering all the evidence, allegations, and information presented by the applicant with the current request, together with the previously available evidence of record, the advisory opinions, and the applicable law and regulations, the Board again concludes that the applicant has not presented, nor do the records contain, sufficient justification to establish that it would be in the interest of justice to excuse the failure to file within the time prescribed by law.

DETERMINATION:  The original determination made by the Board in this case is reaffirmed regarding the applicant’s requests for removal of the HQDA bar to reenlistment and reinstatement on active duty, in pay grade E-6, with retroactive pay and allowances to 31 March 1986.  In regards to the applicant’s requests for placement on the permanent disability retired list and removal of the EER covering the period September 1977-August 1978 as a partial basis for the HQDA bar to reenlistment, these issues were not submitted within the time required.  Additionally, he has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

Note:  The Commander, U.S. Army Reserve Personnel Center, will be requested to review the applicant’s records and take appropriate administrative action regarding his entitlement to the subsequent awards of the Good Conduct Medal.  In this regard, an investigation and suspension of favorable personnel actions was initiated on 9 August 1985 since the applicant had been entered in the Army’s Weight Control Program.  Therefore, it appears that he is ineligible for any awards after that date.

BOARD VOTE:

                      EXCUSE FAILURE TO TIMELY FILE

                      GRANT FORMAL HEARING

                      CONCUR WITH DETERMINATION

		David R. Kinneer
		Executive Secretary