RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        9 August 2005
      DOCKET NUMBER:  AR20040010882


      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             |
|     |Ms. Yvonne J. Foskey              |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Barbara J. Ellis              |     |Chairperson          |
|     |Mr. Kenneth L. Wright             |     |Member               |
|     |Mr. Patrick H. McGann             |     |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, that his DD Form 214 (Certificate of
Release from Active Duty) be corrected to show an unspecified type of
discharge, narrative reason, and separation.

2.  The applicant states, in effect, that he believes there is a typing
error on his DD Form 214 in Item 28 [Narrative Reason for Separation].  He
also states, that he was released for Overweight and believes that his
separation code is incorrect.

3.  The applicant provides a copy of his DD Form 214 and copy of his Social
Security Card.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on
2 April 1992, the date of his separation from active duty.  The application
submitted in this case is dated 17 November 2004.

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 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 service personnel records show that he enlisted in the
Army National Guard on 21 July 1987.  He completed basic combat training
and advanced individual training and was awarded military occupational
specialty 88M (motor transport operator).

4.  The applicant's personnel records show that he enlisted in the Regular
Army on 31 May 1988 for a period of 4 years.

5.  Records show that on 6 August 1991, nonjudicial punishment was imposed
against the applicant for failure to go to his appointed place of duty.
His punishment consisted of seven days of extra duty and seven days
restriction

6.  Records show that on 11 September 1991, nonjudicial punishment was
imposed against the applicant for failure to go to his appointed place of
duty.  His punishment consisted of reduction to grade of private first
class grade E-3,
14 days extra duty and 14 days restriction to limits of the barracks, place
of duty, and place of worship.

7.  Records show that on 10 July 1991, DA Form 4856 [General Counseling
Form] was given to the applicant stating that he was over his screening
table for his weight and body fat and was being considered for the Army
Weight Control Program in accordance with AR 600-9.  The applicant was
informed that if found fit by a physician he would be flagged in accordance
with Army Regulation
600-8-2 for being over his body composition/weight control standards.  All
favorable actions on his behalf would cease, and that he would be weighed
in twice a month and taped with the results recorded.  Furthermore, that
after 90 days the weight loss and body fat content would be reviewed and
after six months if he failed to make progress chapter 5, Army Regulation
635-200 would be initiated.

8.  On 6 August 1991, the applicant's commander informed him that he had
been flagged under provisions of Army Regulation 600-31 [Suspension of
Favorable Personnel Actions].

9.  On 6 August 1991, the applicant acknowledged that he understood his
responsibilities to achieve the weight and body fat standards and that he
would have his weight recorded periodically to follow his progress.

10.  On 31 July 1991, the unit commander requested that the applicant
receive counseling on nutrition education and weight reduction in
accordance with Army Regulation 600-9, paragraph 20b (1).

11.  On 14 August 1991, the applicant received nutrition and weight
reduction counseling in accordance with Army Regulation 600-9.

12.  Records show that that applicant failed to make satisfactory progress
and continually gained weight and body fat during the six months given to
meet the Army standards.

13.  On 24 February 1992, the applicant's commander initiated separation
under Army Regulation 635-200, chapter 5 for failure to meet Army body
composition or weight control standards.


14.  On 26 February 1992, the applicant acknowledged receipt of the
separation notification from his commander.

15.  On 27 February 1992, after being advised by his consulting counsel the
applicant acknowledged the rights available to him; and the effect of any
action taken by him in waiving his right.  The applicant chose to submit a
statement on his own behalf.  He requested to have the chapter 5 instituted
against him withdrawn, and be allowed to ETS [expiration of term of
service] so that he could leave the service with dignity, and not to be
fired from the Army as a result of a separation action.

16.  On 10 March 1992, the applicant's battalion commander of the 533rd
Transportation approved the applicant's discharge and directed that he be
separated under the provisions of Chapter 5, paragraph 5-15e, Army
Regulation 635-200, by reason of failure to meet Army body
composition/weight control standards, and that he receive an honorable
discharge.

17.  On 2 April 1992, upon discharge the applicant was issued his DD Form
214 which does confirm his service was characterized as honorable, but
erroneously indicates in Item 25 [Separation Authority] that he was
separated under paragraph 14-12c, Army Regulation 635-200; Item 26
[Separation Code] JKQ; and Item 28 [Narrative Reason for Separation]
misconduct-commission of a serious offense.

18.  Army Regulation 635-200 provides the basic authority for the
separation of enlisted personnel.  Paragraph 5-15e, in effect at the time,
provided the policy for separating members who failed to meet the Army body
composition/weight control standards if this condition was the only reason
for separation, and there was no underlying medical condition which
precluded them from participating in the Army body composition/weight
control standards.  Members separated under this provision of the
regulation received an honorable discharge.

19.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities
(regulatory or directive), reasons for separating Soldiers from active
duty, and the SPD codes to be entered on the DD Form 214.  The regulation
in effect at the time of the applicant's separation stipulated, in
pertinent part, that the SPD code of "JFV" was the appropriate code to
assign to Soldiers separated under the provisions of chapter 5, Army
Regulation 635-200, by reason of failure to meet Army composition and
weight control standards.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 contains administrative
errors in Item 25 [Separation Authority], Item 26 [Separation Code], and
Item 28 [Narrative Reason for Separation].

2.  Evidence of record confirms the applicant's separation was approved
under the provisions of paragraph 5-15e, Army Regulation 635-200, by reason
of failure to meet Army body composition/weight control standards, and
receive an honorable discharge.  However, it is clear an administrative
error occurred in the preparation of his DD Form 214.

3.  The applicant's separation document erroneously lists the authority for
separation as paragraph 14-12c, Army Regulation 635-200, the narrative
reason for separation as misconduct, commission of a serious offense, and
as a result of using the incorrect authority and reason for separation, an
improper SPD code of "JKQ" was assigned.

4.  In view of the facts of this case, it would serve the interest of
justice to correct the applicant's separation document to show he was
separated under the provisions of paragraph 5-15e, Army Regulation 635-200,
by reason of failure to meet Army body composition/weight control
standards, and assigned a SPD code of "JFV", as directed by the separation
authority.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 2 April 1992; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 1 April 1995.  The applicant did not file within the 3-year
statute of limitations, however he has provided compelling evidence to show
that it would be in the interest of justice to excuse failure to timely
file in this case.

BOARD VOTE:

___BJE      ___KLW_  __PHM _  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief and to excuse failure to timely file.  As a
result, the Board recommends that all Department of the Army records of the
individual concerned be corrected by amending his DD Form 214 as follows:.

           a.  Correcting Item 25 [Separation Authority] by deleting the
current entry and replacing it with the entry "Paragraph 5-15e, Army
Regulation 635-200;

           b.  Correcting Item 26 [Separation Code] by deleting the current
entry and replacing it with the entry "JFV" and;

           c.  Correcting Item 28 [Narrative Reason for Separation] by
deleting the current entry and replacing it with the entry "Failure to meet
Army body composition/weight standards."




                            ____Barbara J. Ellis______
                                      CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040010882                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005-08-09                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1992/04/02                              |
|DISCHARGE AUTHORITY     |AR635-200 . . . . .                     |
|DISCHARGE REASON        |Chapter 5 Failure to Meet Body Weight   |
|                        |Standards                               |
|BOARD DECISION          |GRANT ,                                 |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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