RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            24 May 2005
      DOCKET NUMBER:   AR20040007798


      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:

|     |Ms. Margaret V. Thompson          |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Leonard G. Hassell            |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, reinstatement in the Army National
Guard (ARNG).

2.  The applicant states that investigators concluded he was discriminated
against on the basis of his national origin in that he was a victim of
disparate treatment in the enforcement of the Army Weight Control Program.

3.  The applicant provides a 13 August 1993 memorandum from the National
Guard Bureau (NGB) to the Adjutant General of Texas with 7 pages from an
NGB Equal Opportunity (EO) investigation; a 13 February 1995 letter from
Governor Bush to the Commander, U. S. Army Personnel Center (ARPERCEN); an
8 February 1995 letter from the Adjutant General of Texas to the Commander,
ARPERCEN; a  29 May 1997 letter from Congressman O__ to the applicant; a 30
July 1998 letter from Congressman O___ to the applicant; a 15 July 1998
letter from the Adjutant General's Department, State of Texas, to
Congressman O___; and a 9 May 2003 letter from the Army Board for
Correction of Military Records (ABCMR) with 3 attachments (an email dated
13 February 2003; a      22 December 2003 letter from the Adjutant
General's Department, State of Texas to Congressman O___; and a 23 December
2003 letter from Congressman O___ to the applicant.

4.  The applicant also states he provides a 13 May 1997 letter from the
Adjutant General of Texas to Jerry S___; however, what was provided was a
13 May 1997 letter from the Special Assistant to the Adjutant General of
Texas to Congressman O___.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred at the latest around 13 May 1997, when Congressman O___ was
informed the ABCMR had not yet received his application.  The application
originally submitted in this case was dated 21 June 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 ABCMR
to excuse failure to file within the 3-year statute of limitations 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 ARNG records are not available to the Board.  This case
is being considered using reconstructed records which primarily consist of
the documents provided by him and several other documents provided with his
original ABCMR application.

4.  The applicant was born on 31 July 1957.  After having had prior
service, the applicant enlisted in the ARNG on 9 April 1981.  He was
discharged from the ARNG and as a Reserve of the Army on 12 June 1988 under
the provisions of National Guard Regulation 600-200, paragraph 8-26x
(expiration of service obligation).

5.  In 1992, the NGB, Office of Human Resources, EO Division conducted an
investigation into various complaints of equal opportunity discrimination
filed by Texas Guard Mexican Americans.  The report was completed in May
1993.

6.  In pertinent part, the EO Executive Summary noted that the applicant
alleged he was not allowed to reenlist because he was overweight while
Sergeant H___, a white Anglo-Saxon, was also overweight and had not passed
his Army Physical Fitness Test but was being retained by the ARNG.  The
applicant further alleged that he had personally heard, on a daily basis,
degrading racial slurs directed toward him and other Hispanic personnel
with weight problems.

7.  The EO Executive Summary noted that the applicant's commander had
suspended favorable personnel actions on the applicant on 21 July 1987 as
required by regulation.  The suspension indicated he was in the Weight
Control Program and that he had been provided a copy of the suspension of
favorable personnel actions.  It noted that a physical examination of him
conducted on     13 April 1985 indicated he was 71 inches tall and weighed
235 pounds at that time.  He was 27 years old, and the screening table for
weight in Army Regulation 600-9 allows a 27-year old male who is 71 inches
in height a maximum of 189 pounds.  That would have placed the applicant 46
pounds over the maximum weight allowed at that time, which indicated a
lengthy period of time over which he had a weight problem.

8.  In his original ABCMR application, the applicant stated that at the
time of his discharge he was under the care of a doctor for weight loss,
which he was losing. He requested a physical to show that he was losing
weight, in accordance with Army Regulation 600-9.

9.  The EO Executive Summary noted that there was evidence to support the
applicant's claim that he was treated differently from Sergeant H___ in
enforcement of the weight control standards.  However, the separation of
the applicant appeared to be perfectly in accordance with the governing
regulations.  The applicant was treated differently from Sergeant H___ and
that treatment was discriminatory.  However, the problem was not that the
applicant was treated in violation of regulations but that Sergeant H___
had not been made to meet the same standards.

10.  By letter dated 13 February 1995, the Governor of Texas supported the
applicant's request to correct his records.  By letter dated 8 February
1995, the Adjutant General of Texas supported the applicant's request to
correct his records.  He stated that if he had been the Adjutant General at
the time, the applicant would have been afforded due process and allowed to
attain his fullest potential.

11.  On 21 June 2002, the applicant applied to the ABCMR for reinstatement.
 His application was administratively closed on 9 May 2003 due to the
nonavailability of his ARNG records.

12.  In the processing of this case, an advisory opinion was requested from
the Personnel Division, NGB.  That office recommended that the applicant's
request be returned without action.  That office noted that the EO Report
of Investigation found his separation was in accordance with the governing
regulations and he provided no new evidence to show otherwise.  That office
also noted that the applicant has had an ample amount of time to meet
weight [standards] and reenlist back in the ARNG if he desired.

13.  A copy of the advisory opinion was provided to the applicant for
comment or rebuttal.  He did not respond within the given time frame.

14.  Army Regulation 600-9 (The Army Weight Control Program) applies to all
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 Weight
Control Program, to include evaluation of the weight and military
appearance of all Soldiers under their jurisdiction.  A Soldier will be
flagged and enrollment in a weight control program starts on the day the
Soldier is informed by the unit commander that he has been entered in a
weight control program.  A medical evaluation will be accomplished when
requested by the unit commander or when the Soldier is being considered for
separation due to failure to make satisfactory progress in a weight control
program.  The required weight loss goal of 3 to 8 pounds per month is
considered a safely attainable goal.

15.  Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions
(Flags)) applies to the Active Army, the ARNG, and the U. S. Army Reserve,
It states that a flag for weight control prohibits a number of personnel
actions to include reenlistment and extension.  Commanders may approve
reenlistments and extensions under certain medical conditions as advised by
the supporting total Army career counselor.

DISCUSSION AND CONCLUSIONS:

1.  The EO investigation confirmed that the applicant had been
discriminated against in that he was a victim of disparate treatment in the
enforcement of the Army Weight Control Program.  However, the investigation
did not find that he had been improperly separated nor has the applicant
provided any evidence to show he was improperly separated.

2.  The EO investigation revealed that a physical examination of the
applicant conducted on 13 April 1985 indicated he was 46 pounds over the
maximum weight allowed at that time.  Had he lost the minimum, 3 pounds per
month recommended by the governing regulation, he would have met weight
standards around July 1986.  However, by the applicant's own admission in
his original ABCMR application, he was still in the process of losing
weight at the time of his discharge.

3.  The applicant's unit did wrong by giving preferential treatment to
Sergeant H___; however, it did not do wrong in separating the applicant
upon the expiration of his term of service.  He was not separated due to
not meeting satisfactory progress in the weight control program; however,
his flag for being in the weight control program prohibited his immediate
reenlistment.

4.  The applicant's commander could have approved a reenlistment or
extension under certain medical conditions.  His ARNG records are not
available so there is no evidence of record to show whether or not he had a
medical condition (such as taking steroidal medications) that would have
warranted such a reenlistment or extension.  However, neither does the
applicant provide such evidence or even contend that he had such a medical
condition.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration at the latest around 13 May 1997, when
Congressman O___ was informed the ABCMR had not yet received his
application.  Therefore, the time for the applicant to file a request for
correction of any error or injustice expired around 16 May 2000.  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 timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__mvt___  __jtm___  __lgh___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would 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.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




            __Margaret V. Thompson__
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040007798                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050524                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.03                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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