RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        28 September 2006
      DOCKET NUMBER:  AR20060003910


      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. Dean L. Turnbull              |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Paul M. Smith                 |     |Member               |
|     |Ms. Alice Muellerweiss            |     |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 item 27 (Reentry Code) and item
 
28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of
Release or Discharge Form Active Duty) be changed to a favorable
reenlistment code.

2.  The applicant states, in effect, that he got out of the military and
has lost weight and now he would like to have a productive military career
in the Army National Guard, serving in an Active Guard and Reserve (AGR)
position.

3.  The applicant provides a copy of his DD Form 214.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he entered active duty this
period on 30 October 1989.  He completed advanced individual training and
was awarded the military occupational specialty 88M10 (Motor Transport
Operator).

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 records show that his last assignment on active duty
was with B Battery, Personnel and Support Battalion, Fort Sill, Oklahoma.
His records show that on 26 February 1992 and on 5 October 1992, he was
counseled for not meeting the weight standards of the Army Weight Control
Program.  The applicant was given a physical examination and was found fit
to participate in a weight control and physical exercise program, and that
the cause for his overweight condition was not due to a medical condition.

4.  On 2 November 1992, he was recommended for separation by his commander,
the applicant waived his right to have his case heard by an administrative
separation board.  On 9 November 1992, the recommendation for separation
was approved by the appropriate authority.

5.  On 17 February 1992, the applicant was discharged under the provision
of paragraph 5-15, Army Regulation 635-200 (Personnel Separations –
Enlisted Personnel), due to failure to meet Army body composition and
weight control standards.  He completed 2 years, 11 months and 18 days of
active service characterized as honorable.

6.  Item 27 on his DD Form 214 shows RE code of RE-3.  Item 28 of his DD
Form 214 shows the narrative reason for separation is failure to meet body
fat standards.

7.  Item 26 (Separation Code) on his DD Form 214 shows “JFV."

8.  Army Regulation 635-5-1 (Separation Program Designator Codes) , in
effect at the time, states the reason for discharge based on separation
code “JFV” is “Failure to Meet Body Fat Standards” and the regulatory
authority is Army Regulation 635-200, paragraph 5-15.  This separation code
is used for involuntary discharge from active duty.

9.  Chapter 5, paragraph 5-15 of Army Regulation 635-200, in effect at the
time, provides that Soldiers who fail to meet the body fat standards set
forth in Army Regulation 600-9 shall be separated under this provision when
it's the sole basis for separation.  The regulation provides that the
Soldier must be given a reasonable opportunity to comply with and meet the
body fat standards.  The regulation also provides that if no medical
condition exists and if the individual fails to make satisfactory progress
in the program after a period of six months, then initiation of separation
or imposition of a bar to reenlistment is required.  The service of
Soldiers separated under this chapter will be characterized as honorable.

10.  Army Regulation 15-185 (Army Board for Correction of Military Records)
prescribes the policies and procedures for correction of military records
by the Secretary of the Army, acting through the ABCMR.  The regulation
provides that
the ABCMR begins its consideration of each case with the presumption of
administrative regularity.  The applicant has the burden of proving an
error or injustice by a preponderance of the evidence.

11.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment
Program) covers eligibility criteria, policies, and procedures for
enlistment and processing into the Regular Army and the US Army Reserve.
Chapter 3 of that regulation prescribes basic eligibility for prior service
applicants for enlistment.  That chapter includes a list of Armed Forces RE
codes, including Regular Army RE codes.

12.  Table 3-1 (U.S. Army reentry eligibility codes) of Army Regulation  
601-210 states that RE-3 code applies to persons who are not considered
fully qualified for reentry or continuous service at time of separation,
but disqualification is waivable.  Soldiers separated for failure to make
satisfactory progress on the Army weight control program are assigned an RE-
3 code.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that item 27 and item 28 on his DD Form 214 be
changed to a favorable reenlistment code.

2.  The applicant has failed to establish that the RE-3 code in item 27 on
his DD Form 214 was improperly assigned.  Therefore, there is no need to
change his RE-3 code in item 27.

3.  The governing regulation, in effect at the time of the applicant’s
separation, states the reason for discharge based on separation code “JFV”
is “Failure to Meet Body Fat Standards” and the regulatory authority is
paragraph 5-15 of Army Regulation 635-200.  Therefore, the reason for
separation in item 28 of his DD Form 214 is correct.

4.  The applicant's RE-3 code simply implies that he was not eligible to
reenlist at the time of his separation and that if the needs of the service
so dictate, he could be granted a waiver of the disqualification.

5.  The applicant's interest to enter the AGR program through the Army
National Guard, has no bearing on his request to change item 27 and item 28
of his DD Form 214.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 17 November 1992; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on  
16 November 1995. 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

___lds___  ___am__  ___pms__  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.




                                  _________Linda D. Simmons________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060003910                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060928                                |
|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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