PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:          3 April 2003                    
	DOCKET NUMBER:  AR2002078826

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Joseph A. Adriance 		Analyst	

The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. Patrick H. McGann		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
            records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests reconsideration of her earlier appeal to correct her military records by removing a Department of the Army (DA) bar to reenlistment imposed under the provisions of the United States Army Reserve (USAR), Active Guard Reserve (AGR), Qualitative Management Program (QMP).

3.  The applicant states, in effect, that she has gathered new evidence by obtaining copies of her Female Body Fat Content Worksheets 
(DA Form 5501-R).  She claims that these documents were not in her control when she submitted her original application.  

4.  The Memorandum of Consideration (MOC) of the Board’s 21 February 2002 review of the case (AR2001059470) is incorporated herein by reference as if wholly set forth.

5.  The applicant’s submission of two Female Body Fat Content Worksheets 
(DA Forms 5501-R) are considered new evidence that requires Board consideration.

6.  The applicant states that her selection for QMP was based on two Noncommissioned Officer Evaluation Reports (NCOERs) that covered the periods from May 1996 through April 1997 and May 1997 through April 1998.  She claims that the QMP notification she received contained very little insight into why the QMP board made the decision it did.  It simply indicates that the problems in the physical fitness and weight areas were revealed on the NCOERs in question.  However, the reports in question do not contain any information that would support this conclusion.  

7.  The applicant claims that a review of the NCOERs cited by the QMP board will not reveal any failure to meet standards in either physical fitness or weight areas.  She claims that entries contained in both of the reports are valid entries.  The APFT entry confirms that she was on a valid physical profile and was unable to take the APFT during the periods covered by the reports.  The height and weight entries while indicating that she exceeded the screening weight for her height, confirm that she met the Army’s weight standard by body fat measurement with “Yes” entries in both reports.  

8.  The applicant claims that the Board’s original decision hinged on the fact that she failed to take the APFT for two consecutive years due to a medical profile and that she exceeded the screening table weight for her height.  She states that the only reason she had not taken the APFT was because she had suffered a relatively serious injury that resulted in her being on a physical profile during these periods.  Further, she did not fail to meet the Army weight standard because she exceeded the screening weight.  During the period of both reports, she had undergone body fat measurements that found her within standards.  She goes on to indicate that she has never exceeded the body fat allowable standard.  

9.  The applicant questions some of the regulatory cites used in the original Board decisional document in regard to bars to reenlistment and separation processing.  However, she concludes that the bottom line is that she is trying to overturn an unjust QMP because she has never failed an APFT or exceeded Army weight control standards.  

10.  In support of her application, the applicant provides two DA Forms 5501-R, a statement from her unit commander, a copy of a legal review that establishes that sufficient grounds did not exist to warrant her elimination following the imposition of the QMP action, and all documentation that she provided with her original application. 

11.  On 12 January 2000, the applicant was notified that a DA bar to reenlistment had been imposed on her under the provisions of the QMP.  She was informed that her QMP selection was based on two annual Noncommissioned Officer Evaluation Reports (NCOERs) for the periods May 1996 through April 1997 and May 1997 through April 1998.  

12.  In the NCOER ending in April 1997, the applicant received a “Success” rating in Part IVc (Physical Fitness & Military Bearing).  The APFT entry was “Profile 9610”, which indicated that she was unable to take the APFT to a physical profile limitation; and the Height/Weight entry was “69/197 Yes”, which indicated that although she exceeded the screening table weight for her height, she did meet Army weight control standards.  A supporting bullet comment states that the applicant was “within the body fat standards of Army Regulation 600-9.”  

13.  In the NCOER ending in April 1998, the applicant received a “Success” rating in Part IVc.  The APFT entry was “Profile/9610, which indicated that she was unable to take the APFT based on some physical profile limitation; and the Height/Weight entry was “69/205 Yes”, which indicated that she although she exceeded the weight for her height on the screening table, she met the Army weight control standard.  A supporting bullet comment states that her “profile does not interfere with soldier performing duties.”  

14.  On 16 February 2000, the applicant appealed her QMP selection.  In this appeal, she explained that she had sustained an injury in July 1996 that resulted in her being on some form of physical profile through April 1998.  She also indicated that in March 1999, she was issued a permanent profile that cleared her to take a modified APFT consisting of the sit-up, push-up, and two mile walk events.  She further stated that she had taken and passed her two last APFTs.  She concluded by stating that she was currently performing all the duties required of her specialty and grade, and could perform those duties in world wide environment.  

15.  On 5 September 2000, the applicant’s unit commander was notified that her QMP appeal had been considered and denied by a DA Enlisted Standby Advisory Board (STAB), and that separation action was required to be initiated.  Further, the command was informed that if in the opinion of the local staff judge advocate (SJA), the general court-martial convening authority (GCMCA) would return the separation request, the SJA’s opinion should be forwarded to the Army Reserve Personnel Command (ARPERSCOM).  

16.  On 14 December 2000, the SJA of the applicant’s command found the proposed separation action pertaining to the applicant was legally insufficient.  The SJA concluded that there was insufficient evidence to support the action under the governing regulatory separation provisions.  There is no record of what action took place subsequent to this SJA recommendation.  

17.  On 10 January 2001, the Deputy Chief of Staff, Personnel, 89th Regional Support Command, returned the separation action on the applicant to ARPERSCOM on behalf of the commander, the GCMCA.  The memorandum indicated that the proposed separation action on the applicant was reviewed by the command SJA, and it was determined that there was insufficient evidence to support the action under the governing separation regulation.  There is no indication that any further action was taken in regard to the applicant’s separation.  

18.  The applicant’s record confirms that she had the strong support of her chain of command in both her initial appeal of the QMP action and in her initial application to this Board.  Further, she now provides copies of Body Fat Worksheets, dated 22 February 1998 and 19 April 1998, which confirm that her body fat content was 32.06% and 31.29% respectively, and that her maximum allowable body fat content was 34%.  This confirms that she met the Army’s weight control standards.  

19.  The applicant also provides a statement from her unit commander to clarify the reason the applicant’s APFT scorecards lacked height and weight data, as was noted by the Board during its original consideration of the case.  The unit commander confirms that it has been the unit’s practice to record the height and weight of soldiers directly into a database when they weigh-in and not in the APFT scorecard.  He confirms that this is not a procedure over which the applicant had any control.  

20.  Army Regulation 623-205 contains the Army’s enlisted evaluation report policy.  Paragraph 3-11 contains guidance on the APFT entry and it states, in pertinent part, that the rater will enter one of the following APFT entries: "PASS" or "FAIL" and the year and month of the APFT results.  However, if no APFT is taken due to profile, the entry will be: "PROFILE" and the year and month the profile was awarded.  It further states that the rater will explain an APFT entry "PROFILE” by describing the rated NCO's ability to perform assigned duties.  
21.  Paragraph 3-12 contains instructions for the height and weight entry.  It states that the rater will enter the rated NCO's verified height and weight (in inches and pounds) as of the unit's last record weigh-in and an entry of "YES" or "NO" to indicate compliance or noncompliance with the provisions of Regulation 600-9.  It further states, in pertinent part, that the rater will enter "YES" for those NCOs who are in compliance with the body fat standards of Army Regulation 600-9. The statement "within body fat standards of AR 600-9" is no longer required and will not be used on evaluation reports. 

22.  Army Regulation 600-9 establishes policies and procedures for the implementation of the Army Weight Control Program.  In effect, it states that soldiers who exceed the weight for their height must undergo a body fat percentage measurement.  Those who are found to exceed their maximum allowable body fat percentage fail to meet the Army’s weight control standard.  However, those found to be within the maximum allowable percent of body fat meet the Army’s weight control standard. 

CONCLUSIONS:

1.  The evidence of record confirms that the applicant was on a valid physical profile as a result of treatment for a serious leg injury during the periods covered by both of the NCOERs used as basis for her QMP selection.  Further, the record verifies that body fat measurements taken on the applicant during these periods show that she was within her maximum allowable body fat percentage, and thus, met the Army’s weight control standard as outlined in Army Regulation 600-9.  

2.  The Board recognizes that the QMP board has the vested authority to select individuals for DA imposed bars to reenlistment based on the collective best judgment of its members.  However, it is clear that the applicant did not fail to meet either the Army’s APFT or weight control standards, the areas of weaknesses cited for her QMP selection, even at the time she was selected.  

3.  The Board takes special note of the strong support the applicant received for her appeal of her QMP appeal from her chain of command.  It further notes that the GCMCA found an insufficient evidentiary basis to process a separation action on the applicant and returned it to ARPERSCOM on the advice of his command SJA.  

4.  In view of the facts of this case, the Board finds that the evidence shows the applicant met both the Army’s APFT and weight control standards during the periods covered by the NCOERs that were used as the basis for her QMP selection.  This coupled with the strong support for her retention by her chain of command, and the determination of the GCMCA that there was an insufficient regulatory basis for her separation convinces the Board that the requested relief is warranted in this case.  
5.  In view of the foregoing findings and conclusions, correcting the applicant’s records as recommended below would correct an error or rectify an injustice.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by removing the DA imposed bar to reenlistment imposed under the provisions of the USAR, AGR, QMP and all associated documents from the records of the individual concerned.  

BOARD VOTE:

__sac___  ___ra___  ___pm ___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Samuel A. Crumpler____
		        CHAIRPERSON

INDEX

CASE ID	AR2002078826	
SUFFIX		
RECON		
DATE BOARDED	2003/04/03	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	GRANT 	
REVIEW AUTHORITY		
ISSUES         1.  281	126.0400	
2.		
3.		
4.		
5.		
6.