RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        5 JANUARY 2006
      DOCKET NUMBER:  AR20050003340


      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. Deborah L. Brantley           |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. William Powers                |     |Chairperson          |
|     |Mr. Thomas Ray                    |     |Member               |
|     |Mr. Randolph Fleming              |     |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 he be issued a "15 year"
retirement letter which would authorize him retired pay at age 60.

2.  The applicant states he was honorably discharged on 1 November 1990 for
failing to meet the Army's weight control standards.  He states he had 16
years of military service at the time and his unit did not provide him any
medical assistance as required by Army Regulations.  He maintains this was
an injustice which resulted in his not receiving a 15 year letter at the
time of his discharge.

3.  The applicant provides no evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 26 April 1990.  The application submitted in this case is
dated
16 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 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.  Records available to the board indicate the applicant served on active
duty for a period of 1 year, 10 months, and 16 days between 1965 and 1967.
He continued his affiliation with the military as a member of the United
States Army Reserve following his release from active duty, but did have a
break in military service between 1971 and 1974.  Following his
reenlistment in the United States Army Reserve in 1974 he accumulated 15
additional qualifying years of military service for retirement purposes.

4.  His records indicate that he had been in and out of the Army's Weight
Control Program since at least 1982, but his performance evaluation reports
indicated he was regularly passing the Army's physical fitness test in
spite of not meeting Army Weight Control Standards.  His available
performance evaluation reports also indicate the applicant performed his
duties in a satisfactory manner.

5.  His record includes numerous statements and indications that his unit
was actively involved in his weight control program.  Several documents
indicate that he was seen by medical personnel as part of his weight
control program and in those instances medical personnel noted that he was
physically fit to participate in a weight reduction program.

6.  In January 1990 the applicant was informed that his records were
scheduled to be reviewed by the Qualitative Retention Board in February
1990.  He indicated that if he was not selected for retention he wished to
be transferred to the Control Group-Reinforcement and that he was not
submitting any comments in own behalf.

7.  While his records do not contain any indication of the outcome of the
Qualitative Retention Board, the applicant's records do indicate that he
was honorably discharged from the United States Army Reserve on 26 April
1990.  At the time of his discharge he had accumulated 16 years of
qualifying service for retirement purposes at age 60.  The applicant
reached age 60 in June 2005.

8.  Army Regulation 600-9, which establishes the policies and procedures
for the Army’s weight control program and standards, states that when a
determination is made that a Soldier exceeds the Army’s weight control
standards he or she will be entered into a weight control program and
flagged under the provisions of Army Regulation 600-31.  Following removal
from a weight control program if it is determined that the individual
exceeds the screening table weight and body fat standard with 12 months
from the date of the previous removal the individual will be subjected to
administrative separation under the provisions of Army Regulation 635-200.
Those who are in noncompliance with Army Regulation 600-9 after 12 months
but within 36 months of the previous removal will be allowed 90 days to
meet the standards.  If they failed to meet the standards after the 90 days
they will be subject to administrative separation.

9.  Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that
for an individual to be found unfit by reason of physical disability, he
must be unable to perform the duties of his office, grade, rank or rating.

10.  The National Defense Authorization Act for Fiscal Year 1995 (Public
Law 103-337) amended Title 10, United States Code, section 1331a (now
codified under section 12731a).  The modification allows Reserve component
soldiers who are involuntarily separated after 5 October 1994 because of
medical unfitness to elect transfer to the Retired Reserve for Reserve
retirement pay at age 60 based on a minimum of 15 years of qualifying
service toward Reserve component retirement.
DISCUSSION AND CONCLUSIONS:

1.  The evidence available to the Board indicates that both the applicant's
unit and medical personnel were actively involved in his participation in
the weight control program.  There is no evidence of any error or injustice
or that the applicant was treated unfairly.

2.  There is no evidence, and the applicant has not provided any that his
weight condition was medically related or that there was any medical
condition which prevented him from losing weight in order to comply with
the Army’s standards.

3.  Even if the applicant's weight issue had been determined to be
medically related and he was found to be medically unqualified for
retention in the United States Army Reserve, there were no provisions in
1990, to qualify such individuals with at least 15 but less than 20
qualifying years of service for retired pay at age 60.  That provision did
not become available until October 1994.

4.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy the aforementioned requirement.

5.  In view of the foregoing, there is no basis for granting the
applicant's request.

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

__WP___  __TR____  __RF ___  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.




                                  _____ William Powers______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050003340                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060105                                |
|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.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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