RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 May 2007
	DOCKET NUMBER:  AR20060014727 


	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. Gerard W. Schwartz

Acting Director

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Ms. Yolanda Maldonado

Chairperson

Ms. LaVerne M. Douglas 

Member

Mr. Gerald J. Purcell

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 honorable discharge be changed to show that he was medically separated, with severance pay, or that he be retired for medical disability reasons.

2.  The applicant states, in effect, that he was discharged from the Army with an honorable discharge in July 1979, with over 19 years of service, and the Army would not let him reenlist.  He was told that he was overweight.  He requests that the Board review his records and grant him severance pay or let him know if he can receive a pension.  He is currently 64 years of age and declared 100 percent disabled and blind by the VA (Department of Veterans Affairs).  He was released in the rank and pay grade of SFC/E-7 (sergeant first class) and was not advised that he had 3 years to file a claim.  

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty), dated 15 June 1979, in support of his request.  

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 15 June 1979, the date of his discharge.  The application submitted in this case is dated 9 October 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 record shows he entered active duty on 7 June 1960.  The applicant successfully completed basic combat training at Fort Jackson, South Carolina, and advanced individual training at Fort Sill, Oklahoma.  On completion of his advanced training, he was awarded the military occupational specialty (MOS), 142.60, Heavy and Very Heavy Field Artillery Crewman.

4.  The applicant continued to serve through a series of continuous reenlistments.  He reenlisted on 18 July 1970, which was his last reenlistment, for 6 years, with an established expiration of term of service (ETS) of 17 July 1976.  He was promoted to SFC/E-7 on 20 March 1974.

5.  The applicant extended his enlistment on 7 May 1975 for 24 months with a newly established ETS of 17 July 1978, to complete an overseas tour in Germany.

6.  The applicant arrived overseas on 2 July 1975.

7.  On 8 April 1977, the applicant was entered in the USAREUR (United States Army Europe) Weight Control Program weighing 241 pounds.  His height was 69 inches and his maximum allowable weight was 186 pounds. 

8.  A bar to reenlistment was imposed against the applicant and a waiver of his bar was submitted on an unknown date.  These documents are unavailable for review.  

9.  On 31 May 1978, the applicant requested an extension, as an exception to policy, for the purpose of completing 20 years of active military service.  The adjutant recommended disapproval based on the applicant's apathetical approach to meeting Army standards.  He stated that the applicant was enrolled in the Army's Overweight Program for over 12 months and that as a senior E-7, he clearly understood the circumstances now confronting him and did not preventively pursue a course in an aggressive manner to prevent such.

10.  On 5 June 1978, the brigade commander recommended disapproval.  He stated that the applicant was properly enrolled in the Weight Control Program on 8 April 1977 at 241 pounds.  His goal was 186 pounds and weighed 234 pounds on 31 March 1978.  He stated that his total disregard of his responsibilities under Army Regulation 600-9 merited termination of his service.  He also had personally observed the applicant on a daily basis since January 1978.  He was overweight and obese.  His personal appearance was a disgrace to the uniform.  He concluded by stating that the final decision made on the applicant's request would affect not only him, but the credibility of his unit commander and the Weight Control program. 

11.  On 17 July 1978, the applicant was given a 3 month extension pending the outcome of a waiver of the bar to reenlistment.  On 17 August 1978, he was given another extension for 2 months. 

12.  On 14 September 1978, the Adjutant resubmitted the applicant's request for  reconsideration per Fonecon between the CSM (Command Sergeant Major) and the 21st Support Command (SUPCOM) Adjutant General (AG).  

13.  On 26 September 1978, the AG, 21st SUPCOM, submitted a recommendation through the Commander, 21st SUPCOM, to the Commander, US Army Enlistment Eligibility Activity (EEA).  The AG recommended approval of a 3 month extension as an exception to policy pertaining to the applicant.  His current adjusted ETS was 16 October 1978.  He was extended pending resolution of the extension/Bar to reenlistment issue being decided.  The AG stated, that notwithstanding the recommendation of the Commander, Combat Equipment Group, Europe, the Commander, 21st SUPCOM had determined that the applicant should be allowed minimum extended service to meet his weight goal of 186 pounds.  

14.  The AG indicated that while this extension request was not permitted under regulation, an extension was warranted in view of:  initiation of extension request prior to the effective date of change 1, of Army Regulation 601-280; and the applicant's otherwise meritorious service for in excess of 18 years.  The AG concluded that the Commander, 21st SUPCOM, had directed that the applicant would be separated if he did not meet the weight standards during the period of his extension.

15.  On 17 October 1978, the applicant was extended for one month, for the convenience of the Government, pending outcome of his extension from EEA.

16.  On 9 November 1978, the Commander, 21st SUPCOM, responded to the AG's request for extension, pertaining to the applicant.  The commander stated they had been advised that as of 8 November 1978, the applicant's weight was 223 pounds which represented approximately a 12 pounds weight gain.  He requested the commander's comments concerning his desire to continue to process or withdraw this case.  He added that although the applicant currently had over 18 years AFS (active Federal service), he was not in a bonafide tenure period based on nonwaivable disqualification which had not yet been waived by HQDA (Headquarters, Department of the Army).  He summarized by stating the applicant's case was being held by the DCSPER (Deputy, Chief of Staff for Personnel) awaiting his reply.

17.  On 16 November 1978, the applicant was extended for 1 month pending the outcome of a waiver of his bar to reenlistment. 

18.  On 13 December 1978, the Commander, US Army EEA, responded.  He stated that the applicant's request for waiver of overweight for the purpose of   24-month extension, as an exception to policy, was not favorably considered.  However, as an exception to policy, and provided that he was otherwise qualified, he was authorized a 6-month extension from his current ETS for the purpose of meeting weight standards established by Army Regulation 600-9. 

19.  On 15 December 1978, the applicant was extended for 6 months for the convenience of the Government.  

20.  The applicant was honorably discharged on 15 June 1979, in the rank and pay grade of SFC/E-7.  He had completed 19 years and 5 months of active Federal service. 

21.  There is no evidence of record that the applicant requested a separation medical examination and his medical records are unavailable for review.  

22.  Army Regulation 600-9 (The Army Physical Fitness and Army Weight Control Program), in effect at that time, established policies and procedures governing physical fitness, weight control, and military appearance as it related to body weight.  This regulation provided commanders, at all levels, with instructions and guidance for the implementation of the Army Physical Fitness and Weight Control Program and established standards of physical fitness and body weight for all Soldiers of the Active Army, the Army National Guard, and the Army Reserve.  The Appendix, (Weight Tables for Army Personnel), shows that for a male, regardless of age, who is 69 inches tall, the maximum weight limit is 186 pounds.

23.  Paragraph 3-3, of the same regulation, pertained to military appearance.  It stated the wearing of the Army uniform should be a matter of personal pride and satisfaction.  Each Soldier was a representative of the United States Government, and should have a physical configuration and posture when in uniform that was trim and smart.  Waistlines that stretched the front of an otherwise well-fitting blouse or shirt, and "pot-bellies" detracted from good military appearance.

24.  Army Regulation 635-200 (Personnel Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 5 covered separation for the convenience of the government.  Paragraph 5-12 pertained to overseas returnees.  It stated, in pertinent part, that commanders were authorized to order separation, for the convenience of the government, of enlisted personnel on their return to the United States or area of residence in which enlisted or ordered to active duty, after completing, or having credit for completing, the normal overseas tour.
25.  Army Regulation 635-40 establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier’s medical status and duty limitations insofar as duty is affected by the Soldier’s status.  A decision is made as to the Soldier’s medical qualifications for retention based on the criteria in AR 40-501, chapter 3.  If the medical evaluation board determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board.

26.  Physical evaluation boards are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.

27.  Army Regulation 601-280, in effect at the time, sets forth the basic authority for the Army Reenlistment Program for all military personnel of the Active Army.  This regulation prescribed the eligibility criteria and options available in the Army Reenlistment Program.

28.  Chapter 2, of this regulation, prescribed the qualifications for immediate reenlistment.  It stated that a member serving in the Active Army who desired to reenlist or extend a current enlistment would submit a DA Form 3340 (Request for Regular Army Reenlistment or Extension) to his immediate commander.  The Commander would then determine whether or not the applicant was eligible for continuing Regular Army service.  

29.  Paragraph 2-8 pertained to special category.  It stated that the waiver authority would not disapprove requests for waivers of disqualifications (waivable or non-waivable) for the following:  persons who had completed 18 years, but less than 20 years, of active Federal service and were requesting extensions of enlistment by an amount sufficient to complete 20 years active Federal service.  Recommendations for disapproval would be referred to the CG (Commanding General) MILPERCEN (Military Personnel Center) [now known as the Army Human Resources Command (AHRC)], for a final determination. 

30.  Paragraph 2-9 pertained to qualifications for reenlistment.  This paragraph stated that one of the basic eligibility criteria for reenlistment was medical.

31.  Paragraph 2-21.1 pertained to weight control.  It stated that personnel who did not meet the criteria set forth in Army Regulation 600-9 would not be permitted to reenlist or extend their enlistment.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant was found to be overweight and was enrolled in the USAREUR Weight Control Program.  He requested a waiver of the bar to reenlistment that had been imposed upon him due to his being overweight.  While he awaited the results of his request, he was given two short-term extensions of his enlistment contract.

2.  On 13 December 1978, he was given a waiver for his overweight condition and was authorized a six-month extension by the US Army EEA, as an exception to policy.  He was specifically advised the extension was for the purpose of meeting weight control standards of Army Regulation 600-9.  The applicant understood that he would be separated if he did not meet the weight standards during the period of his extension.

3.  The applicant was honorably discharge on 15 June 1979, in the rank and pay grade of SFC/E-7, with completion of 19 years and 5 days of active Federal service.  

4.  The applicant's separation medical examination and medical records are unavailable for review.  The evidence clearly shows that he was honorably discharged for the convenience of the Government. 

5.  Based on the evidence provided, the applicant is not entitled to a change of his honorable discharge to show that he was medically separated, with severance pay, or that he be retired for medical reasons.

6.  Despite the numerous extensions the applicant was authorized to allow him to meet Army weight control standards, he failed to make any significant progress.  Since the applicant's record does not contain any documentation to show that he could not lose weight due to a medical condition, it is logical to presume he chose not to take the actions required to lose the required weight.

7.  The applicant's records do not contain any documentation, and the applicant submitted none to show, he was medically unfit while he was on active duty.  There is no evidence he was referred to either a medical or a physical evaluation board for an evaluation of his medical fitness.  As such, he could not have been separated due to a medical disability, with severance pay, or retired for disability reasons.  It is possible the applicant now believes that his having been overweight was a medically disqualifying condition in and of itself; however, this is not true.

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

9.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 15 June 1979; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 14 June 1982.  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

__LD____  ___YM__  __GJP___  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.




____Yolanda Maldonado____
          CHAIRPERSON




INDEX

CASE ID
AR20060014727
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070515
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19790615
DISCHARGE AUTHORITY
AR 635-200, CHAP 5-12
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
128
2.

3.

4.

5.

6.