RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 March 2007
	DOCKET NUMBER:  AR20060010232 


	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.


	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, his discharge due to weight control failure be changed to a medical discharge or retirement.

2.  The applicant states, in effect, he has not received his Federal income tax check since 2004 and his wages are now being garnished, effective January 2006.  The applicant states his chain of command processed him for weight control failure instead of through the disability processing system (medical board) due to the problems he suffered with his back and legs.  The applicant also states he has been denied Montgomery GI Bill (MGIB) benefits and he is being required to repay the enlistment bonus he received.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 2 July 2003 and service medical records obtained from the Department of Veterans Affairs Regional Office, Winston-Salem, North Carolina.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 2 July 2003, the date of his release from active duty.  The application submitted in this case is dated 14 July 2006.

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 military records show he enlisted on 6 February 2001 for a period of 6 years.  The applicant enlisted for a $26,000 cash bonus and he elected to enroll in the MGIB.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty 11C (indirect fire infantryman).

4.  On 19 November 2002, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for violation of Article 107, UCMJ (False official statements).


5.  The records contain numerous DA Forms 4856 (Development Counseling Form), dated from 20 September 2002 to 18 February 2003, documenting counseling the applicant received due to his being overweight according to Army standards and his failures of the Army Physical Fitness Test (APFT).

6.  The records contain DA Forms 5500-R (Body Fat Content Worksheet), dated from 27 August 2002 to 7 March 2003, showing the applicant’s percent body fat steadily increased from 27.16 percent to 32.51 percent.

7.  On 18 March 2003, the applicant received a mental status evaluation.  The examiner found that the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness). The examiner further determined that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.

8.  On 2 April 2003, the applicant received a medical examination.  There were no defects noted on the report of medical examination concerning the applicant’s back or legs.  The examiner found the applicant fit for retention/separation.

9.  The applicant’s medical records show treatment for back pain in May 2003.  The records also show limited treatment for his right knee and his ankles.

10.  On 6 May 2003, the applicant’s commander notified him that action was being initiated to discharge the applicant under the provisions of Chapter 18 (Failure to Meet Body Fat Standards) of Army Regulation 635-200 (Personnel Separations) due to his failure to meet body fat standards.  The commander further stated the applicant had failed to make satisfactory progress in the Army Weight Control Program after six months.

11.  The commander advised the applicant of his right to have his case considered by a board of officers; to appear in person before a board of officers; to submit statements in his own behalf; to be represented by counsel; to waive any of these rights; and to withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge.  The applicant was also advised that recoupment of the unearned portion of his enlistment bonus may be required.

12.  On 7 May 2003, the applicant acknowledged that he had been advised by counsel of the basis for the contemplated action against him under the provisions of Chapter 18 of Army Regulation 635-200 and the effects thereof.  The applicant waived consideration by a board of officers and waived a personal appearance.  13.  The applicant did not submit statements on his own behalf and he waived representation by counsel.  

14.  On 10 May 2003, the applicant’s commander recommended that the applicant be separated prior to the expiration of his enlistment under the provisions of Chapter 18 of Army Regulation 635-200.  The commander stated the applicant had failed to make satisfactory progress in the Army Weight Control Program after six months.  The commander further stated the applicant had been counseled, been afforded nutritional counseling, and given adequate time to meet weight control program standards.

15.  On 20 May 2003, the appropriate authority approved the recommendation for separation under the provisions of Chapter 18 of Army Regulation 635-200 for failure to meet body fat standards.  The applicant had completed 2 years, 
4 months, and 27 days of active service that was characterized as honorable.

16.  Army Regulation 635-200, Chapter 18, provides that Soldiers who fail to meet the body fat standards set forth in Army Regulation 600-9 (The Army Weight Control Program)  shall be separated under this provision when it is 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.

17.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board (MEBD).  Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.

18.  Chapter 5 of Army Regulation 601-280 (Army Retention Program) states, in pertinent part, a Soldier who voluntarily or because of misconduct fails to complete obligated service for which an enlistment bonus was paid will refund a percent of the bonus equal to the percent of obligated service not performed.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant was treated for back pain, his right knee, and his ankles while he was on active duty.  However, he was found to have met medical standards for retention.
  
2.  There is no evidence of record and the applicant has not submitted any evidence that he had a medical condition which would have warranted him being considered by a MEBD.  Without an MEBD, there would have been no basis for referring him to a PEB.  Without a PEB, the applicant could not have been issued a medical discharge or retired for physical unfitness.

3.  Evidence shows that the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

4.  The applicant contends he has not received his Federal income tax since 2004 and that his wages are now being garnished.  The applicant did not complete his enlistment and was required to refund a portion of the bonus equal to the portion of obligated service not performed.  The means by which the Federal government recovers this debt is not within the jurisdiction of the ABCMR.

5.  After a Soldier is separated, the MGIB program is administered by the Department of Veterans Affairs.  Any questions or concerns the applicant has concerning the MGIB should be referred to that agency.

6.  The ABCMR does not correct records solely for the purpose of establishing eligibility for benefits.  

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

8.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 2 July 2003, the date of his release from active duty; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 1 July 2006.  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

____lmd_  ___dkm__  ___kan__  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.




_______Kathleen A. Newman_____
          CHAIRPERSON




INDEX

CASE ID
AR20060010232
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070320
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.