RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  99-02294
      INDEX CODE:  131.00; 136.00

                       COUNSEL:  NONE

                       HEARING DESIRED:  NO


___________________________________________________________________

APPLICANT REQUESTS THAT:

His discharge based on failure in the Weight Management Program (WMP)  be
changed to early retirement, with all pay and benefits.

___________________________________________________________________

APPLICANT CONTENDS THAT:

He changed his career as an Air Force firefighter to a career  in  Target
Intelligence, when the Air  Force  came  out  with  the  program,  Palace
Balance.  When the Air Force came out with the Early Retirement  Program,
he discovered he was ineligible because of the needs of  the  Air  Force.
He was stuck in that he could not retire,  and  he  could  not  keep  the
weight off.  The injustice is that he was stuck in a Catch-22  situation.
He could not retire because he was too valuable to the Air Force, but was
not needed because he was overweight.

There was also a problem with administration of the WMP.  Some commanders
measured tightly, while  others  measured  loosely.   The  difference  is
evident in his WMP file when he moved from Griffiss AFB  to  Little  Rock
AFB.

He is not asking for anything that he feels he does not already  deserve.
He did his job in spite of his commander’s wishes at Little Rock AFB, and
he did it well.

Applicant's submission is attached at Exhibit A.

___________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 17  October  1977,  for  a
period of four (4)  years  in  the  grade  of  airman  basic  (E-1).   He
continued to reenlist, contracting his last enlistment on 3 June 1994, in
the grade of E-6, for a period of 3 years.

The applicant’s Airman Performance Report  (APR)  closing  30  May  1980,
reflects the rater comment, “…successfully lost weight  and  was  removed
from the weight control program.”  His TSgt, SSgt, Sgt Performance Report
closing 30 May 1981, indicates overall “9” ratings.  The  report  closing
11 November 1982, reflects the  indorser  comment,  “He  must  strive  to
improve his military bearing and project more than minimum  standards  in
personal appearance.”  The reports closing 1 April 1984 and  1  September
1984 also noted his lack of concern for personal appearance standards and
military bearing.  He received overall “9” ratings on the reports closing
1 September 1985, 1 September 1986, 15 August  1987,  and  18 July  1988.
The referral report for the period 19  July  1988  through  18 July  1989
(Homestead AFB) is missing.  However,  the  referral  letter  states,  in
part, “…has made unsatisfactory progress in Phase I  of  the  WMP.”   The
Personnel Data System (PDS) indicates  an  overall  “9” rating  for  this
period.

His Enlisted Performance Reports (EPRs) closing 18 July  1990  (Homestead
AFB), 18 July  1991,  18  July  1992,  and  15  Sep  1993  (Ramstein  AB)
consistently marked the applicant “Meets  Air  Force  standards”  in  the
category of How Well Does Ratee Comply with Standards (Consider dress and
appearance, weight and fitness, customs, and courtesies).  He received an
overall 5 rating on the report closing 15 September 1994 (Griffiss  AFB).
He received referral reports, with overall “2” ratings, for  the  periods
16 September 1994 through 7 June 1995 (Little Rock AFB) and 8  June  1995
through 7 June 1996 (Little  Rock  AFB),  for  failing  to  meet  minimum
standards (WMP failure).

He was awarded Air Force Specialty Code  (AFSC)  57170  (Fire  Protection
Specialist) as his primary and control AFSC, effective  1 February  1983.
Although it is not documented on an AF Form 2096,  Classification/On-The-
Job Training Action, the  applicant  apparently  cross-trained  into  the
20131 (Target Intelligence) career field sometime during the 2  September
1984 through 1 September 1985 reporting period.  Although an AF Form 2096
indicates that this PAFSC/CAFSC was withdrawn, effective 6 December 1985,
stating it was  detrimental  to  management  interests,  his  performance
reports closing 1 September 1985, 1 September 1986, 15  August  1987,  18
July 1988, 18 July 1989 ((AF Form  77),  18  July  1990,  18  July  1991,
18 July 1992, 15 September 1993, 15 September 1994, 7 June  1995,  and  7
June 1996 indicate his duty AFSC was in the  Target  Intelligence  career
field.  There is an AF Form 2096 documenting  that  he  was  awarded  the
PAFSC of 20171 (Target Intelligence  Specialist),  effective  14 December
1987.

Applicant was entered in the WMP on 9 September 1992 at 27% body fat  and
244 pounds.  This was 3% over the body fat standard for  his  age  group.
At his 13 October 1992 weigh-in, he weighed 233½ pounds and his body  fat
was 25%.  Subsequent weigh-ins are  recorded  below  in  the  commander’s
reasons for the recommendation for discharge.

On 8 June 1995, the applicant’s commander notified him of his  intent  to
recommend his discharge for  failure  in  the  WMP  (exceeding  body  fat
standards).  His reasons were:  (1) On  or  about  25 November  1992,  he
failed to lose 1% body fat while in the WMP.  His body  fat  was  28%,  a
gain of 3% since his previous measurement; (2) On  or  about  19  January
1993, he failed to  lose  the  required  amount  of  body  fat,  his  2nd
unsatisfactory period.  He received a Letter of Reprimand (LOR)  for  his
unsatisfactory progress and an Unfavorable  Information  File  (UIF)  was
established; (3) On or about 14 June 1993, his body fat was 25%, 1% above
the 24% allowed.  On or about 8 July 1993, his body fat was 26%,  a  gain
of 1% since his previous measurement.  This was  his  3rd  unsatisfactory
period.  He received an LOR for his unsatisfactory progress;  (4)  On  or
about 2 December 1994, his  body  fat  was  30%,  6%  above  his  maximum
allowable limit.  This was his 4th unsatisfactory period.  He received an
LOR for his failure to keep fit and was placed on the control roster; and
(5) On or about 17 May 1995, he failed to lose the required 1%  body  fat
or 5 pounds while in the WMP.  He weighed 249¼ pounds and  his  body  fat
was 29%, a gain  of  5¾  pounds  and  2%  body  fat  since  his  previous
measurement.  This was his 5th  unsatisfactory  period.   He  received  a
Letter of Admonishment (LOA) for his unsatisfactory progress.

On 8 June 1995, the applicant acknowledged receipt of  the  notification,
and on 13 June 1995, he indicated he waived his right to a hearing before
an administrative discharge board, did desire to submit documentation  on
his behalf, and did not waive his right to consult counsel.  On 1  August
1995, the discharge action was found legally sufficient  to  support  the
commander’s recommendation to separate him with an  honorable  discharge,
without a conditional  suspension  of  the  discharge  for  a  period  of
probation and rehabilitation (P&R).  The SJA noted that  the  applicant’s
supervisors have used a variety of disciplinary tools  in  an  effort  to
help  him  meet  weight  standards.   The  only   tool   not   used   was
administrative  demotion.   The  applicant   had   stated   that   future
disciplinary actions would not help him succeed in the WMP.  Accordingly,
his  commander  recommended  discharge  rather  than  demotion  with  the
probability of a later discharge at a lower rank.  The SJA further  noted
that, since the commander’s recommendation, the applicant had a  weigh-in
on 19 June 1995, which indicated  he  lost  1%  body  fat,  a  period  of
satisfactory progress.  His 20 July 1995 weigh-in indicated he  gained  1
pound and  1%  body  fat,  a  period  of  unsatisfactory  progress.   His
commander initiated demotion  proceedings  for  this  6th  unsatisfactory
period, but chose to withdraw the demotion package after  serving  it  on
the applicant.  The SJA recommended that he be served an addendum to  the
discharge notification letter containing the information  about  the  6th
unsatisfactory period.  However, the commander chose not  to  do  so  and
based  his  recommendation  on  the  initial  5  unsatisfactory  periods.
According to AFI 40-502, paragraph  19.2,  a  service  member  should  be
discharged after 4 periods of unsatisfactory progress.

On 22 August 1995, a medical  examination  found  no  underlying  medical
condition that would prevent the applicant from complying with the WMP.

On 23 August 1995, a mental health evaluation was  conducted  to  address
any psychiatric explanation for the applicant’s difficulty  in  complying
with Air Force weight standards.  It was determined  that  his  stressors
did not significantly affect his inability to control his weight.

On 25 August 1995,  in  an  Addendum  to  the  Notification  Letter,  the
commander  added  the  following  information  to  the  reasons  for  the
discharge:  (1) On or about 20 July 1995, he failed to lose the  required
1% body fat or 5 pounds while in the WMP.  He weighed 250½ pounds and his
body fat was 29%, a gain of 1 pound and 1% body fat  since  his  previous
measurement.  This was his 6th unsatisfactory period; (2) On or about  21
August 1995, he failed to lose the required 1% body fat or 5 pounds while
in the WMP.  He weighed 247 pounds and his body fat was 29%,  a  loss  of
only 3½ pounds and no loss in body fat since  his  previous  measurement.
This was his 7th unsatisfactory period; and (3) On or about 19 July 1995,
he was derelict in the performance of his duties in that he failed to  go
to a previously-scheduled mandatory weigh-in.  He received an LOR,  which
was placed in  his  UIF.   The  applicant  acknowledged  receipt  of  the
Addendum, indicated he had consulted counsel  and,  on  30  August  1995,
submitted a statement for consideration.

On 11 September 1995, the  SJA  recommended  approval  of  the  discharge
action with an honorable discharge without P&R and  that  the  separation
authority recommend to the Secretary of the Air Force that he not receive
lengthy service  probation.   Subsequently,  on  12 September  1995,  the
separation authority directed that he be discharged for  Failure  in  the
Weight Control  Program,  Exceeding  Body  Fat  Standards,  with  service
characterized as honorable, without P&R.  Execution of the discharge  was
withheld until HQ AFPC determined whether  the  applicant  would  receive
lengthy service probation.

On 7 November 1995, the discharge was found legally sufficient to support
separation without suspension for lengthy service probation.  On  4  June
1996, after an excessive delay in the HQ ACC recommendation to disapprove
lengthy service probation and receipt of the recommendation at  HQ  AFPC,
the case was found administratively accurate and  was  forwarded  to  the
Secretary of the Air Force Personnel  Council  for  a  decision.   On  20
August 1996, the Secretary of the Air Force  Personnel  Council  directed
approval of the  administrative  discharge  and  denied  lengthy  service
probation.

The applicant was honorably discharged  on  30  August  1996,  under  the
provisions of AFI 36-3208, by reason of  “Weight  Control  Failure.”   He
served 18 years, 10 months and 14 days on active duty.

___________________________________________________________________

AIR FORCE EVALUATIONS:

The  Field  Activities  Division,  AFPC/DPSF,  recommended  denial.   The
applicant’s discharge was reviewed by the Office of the Secretary of  the
Air Force for lengthy service consideration.  Lengthy  service  probation
was denied.  The Secretary of the Air  Force  Personnel  Council  (SAFPC)
provided a legal review confirming the discharge was legally  sufficient.
A complete copy of the DPSF evaluation is at Exhibit C.

The Retirements Branch, AFPC/DPPRR, reviewed this application  and  found
no error or injustice which would warrant approval of  early  retirement.
The applicant did not meet the criteria  and/or  standards  necessary  to
remain on active duty and the commander took appropriate actions when  he
separated the applicant due to unsatisfactory progress on  the  WMP.   He
received separation pay in the amount of $22,380.78.  He  was  ineligible
for the FY96 Voluntary Early Retirement Program based  on  his  CAFSC  of
1N071,  which  was  excluded  from  eligibility.   The  Voluntary   Early
Retirement Program, commonly known  as  the  Temporary  Early  Retirement
Authority (TERA), was enacted by Congress, and the Secretary  of  Defense
approved the use of some of the provisions to retire members from  active
duty.  The temporary legislation is a force-shaping drawdown tool and not
an entitlement.  All members meeting minimum eligibility criteria may not
necessarily be approved.  The legislation clearly permits each service to
target segments of its eligible  population  where  it  would  most  need
losses to occur. This case does not meet  the  criteria,  which  must  be
consistently applied in  order  to  ensure  fairness  to  all  Air  Force
members.  A complete copy of the DPPR evaluation is at Exhibit D.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

Copies of the Air Force evaluations were forwarded to the applicant on  9
June 2000, for review and response within 30 days  (Exhibit  E).   As  of
this date, no response has been received by this office.

___________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law  or
regulations.

2.  The application was not timely filed; however, it is in the  interest
of justice to excuse the failure to timely file.

3.  Sufficient relevant evidence has been presented  to  demonstrate  the
existence of probable injustice.  After reviewing the evidence of record,
we note that because the  applicant  was  processed  for  separation  for
failure  in  the  Weight  Management  Program,  he  was  ineligible   for
separation under the Temporary Early  Retirement  Authority  (TERA).   We
also note that the applicant states he was told he could  not  apply  for
early retirement but he could apply for early  out  under  the  Voluntary
Separation Incentive (VSI) or Special Separation Benefit (SSB)  programs.
He also indicates that after his separation was approved, the separations
unit told him that he could have applied for early retirement.  While  we
find no error in the  discharge,  and  the  applicant  has  not  provided
evidence of miscounseling, we believe that the applicant should have been
allowed to retire under the TERA program.  In this respect,  we  note  he
served over 18 years and the performance of his duties during this period
was outstanding.  In view of the above and in the interest of equity  and
justice, we believe  his  records  should  be  corrected  to  the  extent
indicated below.  As a matter of  information,  the  separation  pay  the
applicant received will be recouped, as he is not entitled to  separation
pay and a TERA retirement.

___________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military  records  of  the  Department  of  the  Air  Force
relating to APPLICANT, be corrected to show that:

      a.    He applied for early retirement under the provisions  of  the
Temporary Early Retirement Authority with an effective date of retirement
of 1 September 1996, and his request was approved by competent authority.


      b.    On 1 September 1996, he was retired under the  provisions  of
the Temporary Early Retirement Authority in the grade of E-6, rather than
discharged from active duty under the provisions of AFI  36-3208,  Weight
Control Failure.

      c.    He registered on the Public and  Community  Service  Registry
prior to his retirement.

___________________________________________________________________

The following  members  of  the  Board  considered  this  application  in
Executive Session on 21 September 2000, under the provisions of  AFI  36-
2603:

                 Mr. Gregory H. Petkoff, Panel Chair
                 Mr. William E. Edwards, Member
                 Mr. John E. Pettit, Member

All members voted to correct the records, as recommended.  The  following
documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 30 Sep 1999, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFPC/DPSF, dated 21 Apr 2000.
     Exhibit D.  Letter, AFPC/DPPRR, dated 11 May 2000.
     Exhibit E.  Letter, SAF/MIBR, dated 9 June 2000.

                                   GREGORY H. PETKOFF
                                   Panel Chair


AFBCMR 99-02294




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air Force
Board for Correction of Military Records and under the authority of
Section 1552, Title 10, United States Code (70A Stat 116), it is directed
that:

      The pertinent military records of the Department of the Air Force
relating to, be corrected to show that:

            a.  He applied for early retirement under the provisions of
the Temporary Early Retirement Authority with an effective date of
retirement of 1 September 1996, and his request was approved by competent
authority.

            b.  On 1 September 1996, he was retired under the provisions
of the Temporary Early Retirement Authority in the grade of E-6, rather
than discharged from active duty under the provisions of AFI 36-3208,
Weight Control Failure.

            c.  He registered on the Public and Community Service
Registry prior to his retirement.





            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency