RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          14 December 2005
      DOCKET NUMBER:  AR20050002713


      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             |
|     |Mr. Edmund P. Mercanti            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Mr. Leonard G. Hassel             |     |Member               |
|     |Mr. Michael J. Flynn              |     |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 that his records show that he was promoted to
pay grade E-9 and appointed as a Command Sergeant Major (CSM).

2.  The applicant states that he was a top notch Soldier who served as
First Sergeant at the highest level of command.  After he came down with
pneumonia, he developed asthma for which he was prescribed Prednisone,
which is a steroid.  The Prednisone caused him to gain weight, and he was
given a physical profile to reflect this side effect.

3.  Despite his physical profile, he was treated as a substandard Soldier
because of his weight by the Department of the Army Inspector General
(DAIG) school and his subsequent commands.  He was told that his overweight
condition was reported to the promotion boards, even though he had a
medical reason for his weight gain.  He was enrolled in the Sergeants Major
Academy Corresponding Studies Program and was disenrolled due to lack of
motivation, even though he was undergoing medical treatment at that time
which would lead to his placement on the Retired List for physical
unfitness.

4.  The applicant provides an excerpt from the weight control regulation
and excerpts from his military records.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 27 July 1990.  The application submitted in this case is dated
7 February 2005.

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 show that while serving as the First
Sergeant of Central Command, on 5 January 1989 he was given a physical
profile for asthma.

4.  On 3 March 1989, the DAIG wrote the applicant’s commander and informed
him that the applicant was found to exceed the maximum allowable body fat
content when he attend the DAIG school.  The applicant had submitted
documents showing that his overweight condition was due to a cortisone drug
he was taking for asthma, and his physical fitness program was limited due
to his asthma.  The DAIG recommended that the applicant be scheduled for a
medical evaluation to determine his fitness for retention.

5.  On 12 May 1989, the applicant was given a physical profile which stated
“Medical cause for overweight.”  That physical profile expired on 11 August
1989.

6.  On 10 August 1989, the applicant was given a physical profile which
stated “Medication induced weight gain.”  That physical profile expired on
10 November 1989.

7.  On 19 or 20 October 1989, the applicant was evacuated from Europe to
the United States for extended medical care.

8.  On 13 February 1990, the applicant was notified that he was being
considered for involuntary disenrollment from the Sergeants Major Academy
Corresponding Studies Program due to the fact that he had “not maintained
satisfactory progress or motivation in the Sergeants Major Academy
Corresponding Studies Program.”  The applicant was given the opportunity to
submit an appeal prior to the final decision in the disenrollment.  There
is no evidence or indication that the applicant appealed the disenrollment.

9.  On 5 June 1990, a revised Physical Evaluation Board (PEB) Proceedings
was executed which recommended that the applicant be permanently retired
for asthma, moderate, frequent attacks, requiring multiple medications
including steroids, rated 30 percent disabling.  The applicant agreed with
that modification.

10.  Accordingly, on 27 July 1990, the applicant was honorably released
from active duty and placed on the Retired List the following day due to
physical unfitness.

11.  Army Regulation 600-200, dated 15 December 1988, paragraph 7-6s,
stated that Soldiers are not promotable if they exceed the body fat
standard or maximum allowable weight established in AR 600-9 and no
underlying or associated disease has been found to cause the overweight
condition.

12.  Army Regulation 600-200, paragraph 7-6h(2), stated that Soldiers will
not be advanced or promoted to a higher grade when they are not qualified
under Army Regulation 601-280, paragraph 2-20.

13.  Army Regulation 601-280, paragraph 2-20, dated 15 December 1988,
stated that Soldiers failing to meet retention standards of Army Regulation
600-9 are prohibited from reenlisting.

14.  Army Regulation 600-9, paragraph 22, states that personnel who exceed
the screening table weight at table I and the body fat standard for their
current age group in paragraph 20c will not be allowed to reenlist or
extend their enlistment.  However, enlistment extensions may be authorized
for personnel with a temporary medical condition which precludes loss of
weight.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has provided documentation to show that he had an
underlying medical condition which caused his weight gain.

2.  The applicant has not submitted any documentation to show that he was
not promoted to pay grade E-9 because of his weight.  To the contrary,
there is no evidence or indication that he was ever “flagged” (suspension
of favorable personnel action) for being overweight.  His belief that he
was not promoted due to his weight is speculative at best.

3.  However, since the applicant exceeded the body fat content, he was
prohibited from reenlisting.  Since he was prohibited from reenlisting, he
was not in a promotable status.  As such, his failure to be promoted was
proper and just.

4.  Since the applicant’s request for promotion to pay grade E-9 is being
denied, there is no basis for considering his request to be appointed as a
CSM.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 27 July 1990; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 26 July 1993.  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

____mjf__  ___lgh__  ___jns___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.




            _____John N. Slone________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050002713                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051214                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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