RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 10 February 2004
         DOCKET NUMBER: AR2003090647


         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
Mrs. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Mr. Richard T. Dunbar		Member
Ms. Linda M. Barker		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).

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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests that he be granted an early nonregular retirement with 17 years of qualifying service for retirement. He requests a personal appearance before the Board.

2. The applicant states that a gross injustice was done to him by his unit. His chain of command let his term of service expire as an easy way out to circumvent the provisions and procedures of Army Regulation 600-9.

3. In a September 2001 letter to Senator F___, the applicant stated that he was told on two separate occasions by Assistant Inspector Generals at the Office of The Adjutant General, California that a grave injustice was perpetuated on him by his command. He was denied extension of his enlistment at his expiration term of service (ETS) but the underlying reason was a suspension of favorable personnel actions for being on the Army's weight control program. He was never examined to determine if there was a medical reason which precluded the loss of weight in accordance with Army Regulation 600-9. He always kept himself in good physical condition regardless of his weight. He always passed the Army Physical Fitness Test. He obtained a medical evaluation which diagnosed him as having hypoxema, which is a deficiency of oxygenation of the blood. He also has Pickwickian Syndrome, which leads to obesity.

4. The applicant provides his NGB Form 22 (Report of Separation and Record of Service); discharge orders dated 14 January 1985; a DA Form 268 (Report of Suspension of Favorable Personnel Actions) dated 1 October 1984; an undated letter from The Adjutant General of the State of California to the applicant with accompanying staff action cover sheet dated 22 February 1985; a Disposition Form dated 11 December 1984 showing the applicant had 17 years of qualifying years for retirement as of 14 January 1985; three NGB Forms 23 (Retirement Credits Record); an undated [information sheet] on the 15-year retirement for medically disqualified Guard and Reserve members; a 7th indorsement dated 12 April 1983; an undated DA Form 4036-R (Medical and Dental Preparation for Oversea Movement (POR Qualification)) indicating the applicant met all medical qualifications in accordance with Army Regulation 40-501; a Standard Form 88 (Report of Medical Examination) dated 3 May 1982 indicating the applicant was qualified for retention but was overweight (283 pounds, 5 foot 11 inches); and a Standard Form 93 (Report of Medical History) dated 3 May 1982 wherein the applicant indicated he was in good health.

5. The applicant also provides a letter dated 9 August 2001 from the applicant to unknown parties; platoon sergeant, E-7 promotion orders; a Disposition Form dated 7 November 1982, subject: Disciplinary Action (applicant); an unsigned

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request for voluntary reduction dated 7 November 1982; a Disposition Form dated 9 November 1982 from the applicant to his commander addressing the charge of being absent without leave (AWOL); a letter dated 18 November 1982 to the applicant from his commander, Subject: Notification and Response to Pending Punitive Action; a response from the applicant dated 18 November 1982 to his commander's 18 November 1982 letter; a letter dated 30 November 1982 to the applicant from his commander; a 5-page extract from Army Regulation 600-9; a letter dated 12 March 2002 from the applicant to Senator F___; a letter dated 12 March 2002 from the applicant to the Department of the Army Inspector General; a letter dated 24 January 2002 from the Office of The Adjutant General, California National Guard to Senator F___; a partially illegible letter dated 15 October 1984 to the applicant from the California Army National Guard (CAARNG); and an ARNG Retirement Points History Statement.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of an injustice which occurred on 14 January 1985. The application submitted in this case was received on or about 8 May 2003. A previous application, which had been administratively closed without action, was dated 12 March 2002.

2. Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3. The applicant’s military records are not available to the Board. This case is being considered using reconstructed records which primarily consist of the documents provided by the applicant listed above.

4. After having had prior service in the ARNG and the U. S. Army Reserve, the applicant reenlisted in the ARNG on 15 January 1972. He was promoted to Platoon Sergeant, E-7 on 2 May 1979.

5. The 24 January 2002 letter from The Office of the Adjutant General, CAARNG to Senator F___ indicates that the applicant's records showed he had a weight problem stemming back to his initial enlistment in the late 1950s. By his second enlistment in the 1970s, his weight fluctuated from 240 pounds up to 294 pounds.

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6. A 7th endorsement dated 12 April 1983 from the Military Department, State of California indicates the applicant may have been placed on the weight control program on 3 October 1982. He may have been removed at some point.

7. The 24 January 2002 letter from The Office of the Adjutant General, State of California indicates the applicant's unit requested a one-time waiver, not to exceed 12 months, in order for him to extend to qualify towards attaining 20 qualifying years for retirement. The final authority for his extension was granted on 3 March 1984.

8. An undated letter from The Office of the Adjutant General, State of California shows that in August 1984 the applicant was placed on the weight control program where he gained 11 pounds. He apparently was removed from the weight control program on some date. A DA Form 268 shows that on 1 October 1984 he was flagged for being overweight and entered in the weight control program.

9. On 13 October 1984, the applicant had received a medical evaluation from the 146th Combat Support Hospital. At that time his body weight was 294 pounds with a maximum allowable weight of 250 pounds. He was required to lose 44 pounds within 6 months. There apparently was no documentation to suggest he had any disease that would contribute to his being overweight.

10. On 14 January 1985, apparently upon the completion of his ETS (as extended), the applicant was discharged from the ARNG and the U. S. Army Reserve. He had completed 17 years, 1 month, and 28 days of qualifying service at that time and a total of 18 years, 10 months, and 1 day for longevity purposes only.

11. The 24 January 2002 letter from The Office of the Adjutant General, State of California states that, throughout the applicant's military career, it appeared he was afforded every opportunity for upward mobility. Despite being overweight, he had been granted several waivers ranging from enlistment, fulltime employment, promotion, and finally further retention in the ARNG. He took steps to lose weight in 1979 by joining Weight Watchers and in 1983 by joining Nutri-Systems. He appeared to have made significant progress but did not continue for a long enough period to reach his maximum allowable weight. Since he was 48 years old at the time he separated, he could have applied for reenlistment up to age 58 once he met the Army's weight standards.

12. Army Regulation 600-9 (The Army Weight Control Program) implemented guidance in Department of Defense Directive 1308.1, dated 29 June 1981, which established a weight control program in all the Services. It applies to all

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members of the Active Army, the ARNG, and the U. S. Army Reserve. Each soldier is responsible for meeting the standards prescribed in the regulation. Commanders and supervisors will implement the Army's weight control program to include evaluation of the weight and military appearance of all soldiers under their jurisdiction and to include measuring body fat as prescribed in this regulation.

13. The Army Regulation 600-9 in effect at the time (effective 15 July 1984) stated that routine weigh-ins would be accomplished at the unit level. Percent body fat measurements would be accomplished by health care personnel. Personnel exceeding percent body fat standards would be medically evaluated and provided weight reduction counseling. If health care personnel discovered no underlying or associated disease process as the cause of the condition, and the individual was classified as overweight, the individual would be entered in a weight control program. Suspension of favorable personnel actions would be initiated under Army Regulation 600-31 for personnel in a weight control program.

14. The Army Regulation 600-9 in effect at the time, paragraph 6-21 stated that, beginning 6 months after the effective date of this regulation, personnel who exceeded the screening table weight and the body fat standard for their current age group would not be allowed to reenlist or extend their enlistment.

15. The National Institutes of Health Internet site medlineplus.gov defines Pickwickian syndrome (also known as obesity hypoventilation syndrome) as a condition related to obstructive sleep apnea in which a very obese person does not breathe a sufficient amount of oxygen during sleep or while awake. The cause is unknown but it is likely to involve a combination of a disorder of the brain's control over breathing and the effects of massive obesity on the chest wall. With the excess weight of massive obesity, the muscles of the chest wall can have difficulty expanding the thorax enough to exchange air efficiently. This results in a decreased ability to oxygenate the blood and retention of carbon dioxide. Morbid (massive or excessive) obesity is the main risk factor.

16. Sections 12731 through 12740 of Title 10, U.S. Code, authorize retired pay for Reserve component military service. Under this law, a Reserve soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60. The term “good years” is an unofficial term used to mean years in which 50 or more retirement points are earned during each year and which count as qualifying years of service for retirement benefits at age 60.

17. Public Law 103-337, dated 5 October 1994, established early reserve retirement eligibility for soldiers involuntarily separated from the Selected Reserve due to physical disability during the period 5 October 1994 through 30 September 1999 (later extended and then made permanent). Eligibility is based on a minimum of 15 years of qualifying service toward Reserve Component retirement.

18. Army Regulation 15-185 governs operations of the ABCMR. Paragraph 2-11 of this regulation states that applicants do not have a right to a hearing before the ABCMR. The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel, and witnesses may appear whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1. It appears from the evidence provided that the applicant had a weight problem all his military career. It appears it did not hinder his career until the Army's weight control program was established in 1981. It appears that, beginning in the early 1980s when the applicant could not keep his weight within the established maximum limits, he was placed in a weight control program.

2. As a result of being in the weight control program, the applicant was flagged. His being flagged prohibited his reenlistment. The applicant correctly notes that he was denied extension of his enlistment at his ETS precisely because the underlying reason was a suspension of favorable personnel actions for being on the weight control program. His being denied reenlistment or extension was in accordance with regulatory guidance. Therefore, the applicant had to be separated upon his ETS, at which time he had 17 years, 1 month, and 28 days of qualifying years of service for retirement.

3. The evidence provided shows the applicant received a medical evaluation from the 146th Combat Support Hospital and was thereafter placed in the weight control program. Presumably he was allowed to be placed in the program because no underlying condition or associated disease process was discovered as the cause of the overweight condition. He provides no evidence to show that he now has or ever had such condition. Contrary to the applicant's contention, the Pickwickian syndrome he states he has now does not cause obesity but rather is itself the result of obesity.

4. The applicant states he always kept himself in good physical condition regardless of his weight and always passed the Army Physical Fitness Test. Therefore, presumably there is no reason to think that he was ever unfit for retention in the Army. Even if Public Law 103-337 had been in effect at the time he separated, he would not have been eligible for early retirement under that law as there is no evidence to show he ever had a physical disability that would have made him eligible for early retirement.

5. Records show the applicant should have discovered the injustice now under consideration on 14 January 1985; therefore, the time for the applicant to file a

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request for correction of any error or injustice expired on 13 January 1988. However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

__jns___ __rtd___ __lmb___ DENY APPLICATION

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.




                  __John N. Slone_______
                  CHAIRPERSON

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INDEX

CASE ID	AR2003090647
SUFFIX
RECON
DATE BOARDED	20040210
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	135.03
2.
3.
4.
5.
6.