2.  The applicant requests that he be promoted to pay grade E-7, that his erroneous discharge at the expiration of his term of service be revoked, that he be given retirement points and pay for the drills and annual training he was denied as a result of his discharge, that all documentation pertaining to his failure to be promoted be deleted from his records, and that his Qualitative Management Program (QMP) separation be voided and he be reinstated to a unit, again with retroactive pay and retirement points.

3.  He states that he was illegally denied reenlistment which was later corrected by his being authorized an antedated reenlistment.  However, he could not attend drills or annual training from the date of his illegal discharge to the date of his antedated reenlistment, costing him pay and retirement points.  After his “reinstatement” he was unjustly denied promotion as retaliation for his submission of a Congressional inquiry concerning his denial of reenlistment.  He was occupying an E-8 position and was performing the duties of that position in an exceptional manner.  However, his promotion packet was returned on several occasions without his being selected for promotion.  In addition, he was illegally separated under the QMP as he had not been issued a 20 year letter.

4.  In support of his application he submits a letter from his commander who confirms that the applicant was occupying an E-8 position, that he had forwarded promotion packets for the applicant, and that the applicant was separated under the QMP without being issued a 20 year letter.  The applicant’s commander states that it is his opinion that the applicant was unfairly handled in both his promotion and his separation under the QMP.

5.  The applicant's military records show that while serving as a fire direction chief in a USAR unit in pay grade E-6, on 15 March 1981 he was the subject of a retention physical examination.  He was found to exceed the body fat standards at that time, weighing 270 pounds, measuring 73 inches high.  He exceeded the screening weight table by 62 pounds.

6.  On 12 June 1982 the applicant’s commander counseled him on the consequences of failing to achieve and maintain acceptable body weight standards.
7.  On 11 February 1984 he was again found to exceed the body fat standards, weighing 243 pounds.  His 6AA Form 
121-R, Individual Weight Reduction Progress Chart, shows that he was counseled by a weight control officer on 11 February and counseled by a dietitian on 12 February 1984.  On 17 March 1984 he met weight standards and was removed from the Army Weight Control Program (AWCP).

8.  On 23 June 1985 he was given a quadrennial physical examination.  At that time he was determined not to meet the weight standards, weighing 244 pounds, and was told that he needed to show consistent weight loss to be retained in the USAR.

9.  On 11 and 12 January 1986 he was given unexcused absences from weekend drill.

10.  On 15 March 1986 the applicant was honorably discharged at the expiration of his term of service.

11.  On 15 September 1987 the applicant’s discharge orders were revoked and on 10 December 1987, he executed a reenlistment antedated to 16 March 1986.

12.  Since his “reinstatement” his Noncommissioned Officer Evaluation Reports (NCOER’s) show that he met weight standards in October 1988 and October 1989; failed the standards in October 1990; met the standards in October 1991 and October 1992; and failed the standards in October 1993.

13.  On 2 March 1992 he reenlisted in pay grade E-6 for 
6 years.

14.  On 1 February 1993 he was notified that he was to be considered for retention under the QMP.

15.  On 20 April 1993 the applicant was issued a Chronological Record of Military Service, DA Form 5016-R, showing that he had 22 years, 11 months and 16 days of creditable service.

16.  On 14 February 1994 he was transferred from his unit to the USAR Control Group (Reinforcement).

17.  In the processing of this case the applicant’s former USAR command was contacted.  In response, that command conducted an informal investigation under the provisions of AR 15-6, the regulation which governs the conduct of investigations and boards.  The investigating officer (IO) found that the applicant was ineligible to reenlist in 1986 due to his being overweight, but his command was deficient in that he was not counseled or allowed to extend his enlistment in order to lose weight.  Based on that investigation, the Army Reserve Forces Command (USARC) concluded that the applicant’s 1986 discharge was proper and, therefore, was improperly revoked since a properly issued discharge can only be revoked by the direction of this Board.  As for his separation under the QMP, the USARC stated that the applicant was properly considered under the QMP since he had over 20 qualifying years of service at that time, but he was improperly separated because he had not been issued a 20 year letter at that time.  The USARC recommended that the Board validate the revocation of his 1986 discharge and that he be given pay and retirement points from the date of his discharge to the date of his “reinstatement.”

18.  Army Regulation 140-158 provides guidance on the promotion of reserve enlisted members.  The edition of this regulation which was in effect on 1 November 1985, paragraph 3-5, stated that a reservist is not promotable if he or she is overweight.

19.  Army Regulation 135-205 dated 1 June 1990, in effect at the time of the applicant’s consideration under the QMP, states the members of the Army National Guard (ARNG) must have been issued a 20 year letter to be considered under the QMP, but members of the USAR must only have 20 qualifying years of service; they do not have to be issued a 20 year letter.

20.  Army Regulation 135-178, paragraph 1-30 states that provided there is no evidence of fraud or manifest error and the member receives actual or constructive delivery, orders discharging a soldier from the USAR will not be revoked after the effective date of discharge.

21.  Army Regulation 140-111, table 2-1, rule F, Body Fat Standards, states that individuals who do not meet the body fat standards are disqualified for reenlistment, that no waiver is authorized.  Paragraph 3-2 of this regulation states that a commander may authorize extensions of enlistments when he or she determines that it is in the best interest of the USAR.

22.  Army Regulation 600-9, paragraph 21k, states that following removal from the AWCP, a soldier who is found overweight within 12 months will be subject to separation due to AWCP failure.  If found overweight after 12 but within 36 months, the individual will be allowed 90 days to meet standards and is subject to separation if not within standards after 90 days.

CONCLUSIONS:

1.  All the evidence shows that the applicant was unable to reenlist in 1986 due to his being overweight.  Since he had no inherent right to have his enlistment extended, his discharge was proper.

2.  As such, the applicant’s discharge should not have been revoked and, as pointed out by the USARC, it was revoked without proper authority.

3.  In view of the preceding conclusions, his antedated reenlistment may be considered erroneous upon scrutiny at a later date.  Since that might cause the applicant to lose his retirement at age 60, the Board believes it would be in the interest of justice to validate that reenlistment.

4.  However, it would not be proper to pay the applicant for the unit training assemblies and annual training he missed as a result of his properly executed discharge.

5.  The applicant’s subsequent consideration under the QMP was appropriate, as noted by the USARC.  However, the USARC is in error in its statement that the applicant’s removal was premature because he had not been issued a 20 year letter.  There is no requirement for a reservist to be issued a 20 year letter to be removed under the QMP.  The Board must presume that the USARC thought the applicant was a guardsman.

6.  In addition, the Board notes that the applicant should have been separated on numerous occasions for AWCP failure both before and after his “reinstatement.”

7.  The applicant’s contention that he should be promoted is not supported by the record.  He did not submit his promotion packets or the correspondence returning the packets.  Absent that documentation, it would appear that the applicant was not considered for promotion because he was overweight, which would have disqualified him from promotion consideration.

8.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the antedated reenlistment of the individual concerned, dated 10 December 1987, is valid and binding, that any and all disqualifications to that reenlistment were waived.

2.  That anything in excess to the foregoing be denied.

BOARD VOTE:  

                       GRANT AS STATED IN RECOMMENDATION

                       GRANT FORMAL HEARING

                       DENY APPLICATION




		                           
		        CHAIRPERSON