RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-03106
            INDEX CODE:  100.00

            COUNSEL:  NONE

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

His rank at the time of discharge be reinstated to staff sergeant.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He realizes changing his grade at the time of his  discharge  from  sergeant
to staff sergeant on paper won’t mean much to anyone;  however,  to  him  it
means a lot.  He was being considered for a medical discharge  when  he  was
reduced in grade for failure to progress on the  weight  management  program
(WMP); and this was despite the JAG commander  at  Tinker  AFB  arguing  for
mitigation in his favor.  The commander could have shown leniency  based  on
the outcome of his review, but did not.  He continued to do his job  at  the
same level of professionalism until  his  eventual  medical  discharge.   He
further indicates he did all  that  was  asked  of  him  by  the  group  and
squadron commander.  The Air Force was his career  and  life,  and  to  this
day, the circumstances surrounding his discharge are a heavy burden.

Applicant’s complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 21 July 1977, the applicant enlisted in the  Regular  Air  Force  in  the
grade of airman basic.

According to the applicant’s medical records, it appears he was enrolled  in
the weight control management program in 1979.





On 12 March 1990, the applicant was notified of  his  nonrecommendation  for
promotion.  The commander indicated the reason for this action  was  because
the applicant missed his promotion test date of 7  March  1990,  stating  he
forgot he was testing that day.

Special Order A-2246, dated 17 August  1990,  indicates  the  applicant  was
demoted from the grade of staff sergeant (E-5) to sergeant  (E-4)  effective
and with a date of rank (DOR) of 19 July 1990.

On 22 October 1990, the  Secretary  of  the  Air  Force  Personnel  Council,
acting for the Secretary, found the applicant served satisfactorily  in  the
higher grade of staff sergeant within the meaning  of  Section  1212,  Title
10, United States Code.

Applicant was honorably discharged on 13 November  1990,  in  the  grade  of
sergeant,  under  the  provisions  of  AFR  35-4   (Disability-Entitled   to
Severance Pay).  He served a total of 13  years,  3 months  and  23 days  of
total active military service.  He  received  $32,803.20  in  severance  pay
based on the grade of staff sergeant.

A resume of the applicant's performance reports since 1985 follows:

            PERIOD ENDING         OVERALL EVALUATION

                 16 May 85              9 (Old System)
                 13 Sep 85              9
                 13 Aug 86              9
                  8 Aug 87              9
                  8 Aug 88              8
                  8 Aug 89              9
                  8 Aug 90              3 (New System)
                                             Referral Report

Additional medical information is provided by the BCMR Medical  Consultant’s
evaluation at Exhibit C.

_________________________________________________________________

AIR FORCE EVALUATION:

The BCMR Medical Consultant recommended denial.  He indicated  effective  19
July 1990, the applicant was demoted to sergeant, presumably due to  failure
in the WMP.  In July  1990,  his  orthopedic  surgeon  initiated  a  Medical
Evaluation Board (MEB) for bilateral knee pain  resulting  in  a  disability
discharge with severance pay (20 percent).   Because  of  the  reduction  in
grade, the applicant’s case was referred to the Secretary of the  Air  Force
Personnel Council (SAFPC) for a grade  determination  for  the  purposes  of
disability pay calculation in accordance with Title 10,  Section  1212.   On
October 22, 1990, the SAFPC determined the applicant  served  satisfactorily
in the higher grade of staff sergeant within the meaning  of  Section  1212,
Title 10, United States Code.  Section 1212 of Title 10 applies only to  the
calculation of severance pay and not the actual grade as  shown  on  the  DD
Form 214.  The applicant received severance pay calculated  on  his  highest
grade held.  The applicant’s DD Form 214  properly  reflects  his  permanent
grade of sergeant

He further indicated weight loss occurs when the dietary caloric  intake  is
less than the metabolic needs of  the  body.   Weight  loss  by  diet  alone
requires a  high  level  of  discipline  to  lose  and  maintain  the  loss.
Furthermore, the body responds to weight loss with  a  reduction  in  energy
expenditure that correlates with the “plateau” individuals experience  after
an initial weight loss.  Exercise augments weight loss by raising the  basal
metabolic rate (offsetting the aforementioned effect that  weight  loss  has
on  the  metabolism)  as  well  as  by  burning  calories  during  exercise.
Exercise is not an absolute requisite for  weight  loss,  but  augments  and
helps maintain weight  loss  as  well  as  providing  overall  physical  and
psychological health benefits.

The applicant experienced problems with weight control even before  entering
the Air Force, and was enrolled in the Air Force weight  control  management
programs on a recurring basis since 1979, two years after entry onto  active
duty.  Sustained adherence to the prescribed regimens would have  controlled
the applicant’s weight over the several years he was enrolled in the  weight
management  programs.   While  the  inability  to   exercise   impeded   the
applicant’s ability  to  lose  weight  in  the  months  leading  up  to  his
demotion, the dietary prescription  of  December  1989  accounted  for  this
decrease in activity and would have been expected to produce a  one  to  two
pound loss per week.  Instead, the applicant gained weight  consistent  with
diet non-compliance.  Action and disposition in this  case  are  proper  and
equitable reflecting compliance with Air  Force  directives  that  implement
the law.

The evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the evaluation and indicated he was  overweight  when
he enlisted in the Air Force.  The records of  his  recruiter  indicated  he
had to lose weight on a medically unsafe diet just to get  in  the  service.
The point is the Air Force let him in the service knowing he  had  a  weight
problem.  If the Air Force was going to penalize him  for  his  weight,  why
let him enlist?  He chose to stay and do his best, even though  he  was  not
given the job he had earned in basic training.   The  Area  Defense  Counsel
(ADC) commander pointed out that according to Air Force Regulation 39-10  in
effect at that time, with his being considered for a  medical  discharge  by
an MEB, his commander was  well  within  the  rights  to  withhold  demotion
action pursuant to  the  final  outcome  of  the  MEB.   The  commander  was
counseled by the First Sergeant not  to  show  that  leniency,  despite  his
(applicant’s) job performance.  He asks that his records be changed back  to
the last highest rank he honorably held.   He  feels  his  duty  performance
alone brought credit to his unit and the Air  Force.   He  worked  hard  for
staff sergeant and brought credit to the grade and the units he served.

Applicant’s response is at Exhibit E.

_________________________________________________________________

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 an error or  an  injustice.   After  thoroughly  reviewing  the
evidence of record, the Board is persuaded the applicant’s rank at the  time
of discharge should be reinstated to staff sergeant.   It  appears  the  Air
Force was aware of the applicant’s weight problem almost from the  beginning
of his initial enlistment.  In this respect, the applicant was  enrolled  in
the weight control management program throughout his Air Force  career,  but
it was not until 19 July 1990  that  he  was  demoted  to  sergeant  due  to
failure in the program.  The Board notes, on 22 October 1990, the  Secretary
of the Air Force found the applicant served  satisfactorily  in  the  higher
grade of staff sergeant for the purposes of severance pay  and  he  received
disability severance pay based on that grade.   The  Board  also  notes  the
applicant’s performance reports reflect excellent duty performance with  the
exception of his last performance report.   While  we  cannot  determine  to
what extent his disability impacted his ability to lose weight,  we  believe
the benefit of the doubt  should  be  resolved  in  the  applicant’s  favor.
Therefore, despite his failure in the  weight  control  management  program,
the Board believes the applicant served honorably  in  the  grade  of  staff
sergeant and should have his grade of staff  sergeant  reinstated  effective
the date of discharge.  In view of the foregoing, the Board  recommends  his
records be corrected to the extent indicated below.

______________________________________________________________






THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT, be corrected to show that he was  promoted  to  the  grade  of
staff sergeant, effective and with a date of rank of 12 November 1990.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number  BC-2003-
03106 in Executive Session on 2 June 2004, under the provisions of  AFI  36-
2603:

                 Mr. Albert F. Lowas, Jr., Panel Chair
                 Mr. Charlie E. Williams, Jr., Member
                 Mr. Terry L. Scott, Member

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

      Exhibit A. DD Form 149, dated 20 September 2003, w/atchs.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Letter, BCMR Medical Consultant,
            dated 5 February 2004.
      Exhibit D. Letter, SAF/MRBR, dated 20 February 2004.
      Exhibit E. Letter, Applicant, dated 23 February 2004.




                 ALBERT F. LOWAS, JR.
                 Panel Chair




AFBCMR BC-2003-03106





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 he was promoted to the grade of
staff sergeant, effective and with a date of rank of 12 November 1990.





            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency