IN THE CASE OF:	  

		BOARD DATE:	        23 DECEMBER 2008

		DOCKET NUMBER:  AR20080013983 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that her general discharge be upgraded to an honorable discharge. 

2.  The applicant essentially states that she was discharged in 1984 solely for failing to meet body fat standards, but that later versions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) stipulate that the service of Soldiers discharged solely for failing to meet body fat standards shall be characterized as honorable.  She also states that Department of Defense [Instruction] 1332.28 (Discharge Review Board [DRB] Procedures and Standards) essentially states that a change of discharge is appropriate when there is substantial doubt that the same discharge would be received if the relevant current policy had been in effect at the time the discharge was considered.

3.  The applicant provides evidence which has been indexed in a separate enclosure and a letter, dated 16 July 2008, from a Multnomah County, Oregon veteran's service officer in support of this application.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military records show that she enlisted in the Regular Army on 12 March 1973.  She completed basic and advanced individual training and was awarded military occupational specialty (MOS) 97D (Military Intelligence Coordinator).  She was later awarded MOS 97B (Counterintelligence Agent).  She served in positions of increasing responsibility and rose through the enlisted ranks, with her last promotion to staff sergeant/E-6 occurring on 1 November 1978 with a date of rank of 25 October 1978.

3.  On 26 July 1984, the applicant was discharged under the provisions of Chapter 13 (Separation for Unsatisfactory Performance), Paragraph 13-2a(2) (Failure to meet body fat standards after application of Army Regulation 600-9 [Army Weight Control Program]).  The DD Form 214 (Certificate of Release or Discharge from Active Duty) that was issued to her at the time of her discharge shows that she was discharged under honorable conditions.  

4.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

5.  The applicant provided evaluation reports which essentially show that her duty performance was considered at least good, and in most respects, outstanding.  She also provided certificates and orders which awarded her two Army Commendation Medals, and a letter of appreciation from her commanding officer in July 1976 which essentially stated that the applicant's attitude and devotion to duty were shining examples of what the volunteer Army needs in its Soldiers.

6.  Army Regulation 635-200, in effect at the time, essentially provided that Soldiers who failed to meet body fat standards of Army Regulation 600-9 could be discharged under the provisions of Chapter 13 for unsatisfactory performance. This regulation also stated that the service of members separated because of unsatisfactory performance would be characterized as honorable or under honorable conditions as warranted by their military record.

7.  Chapter 18 (Failure to Meet Body Fat Standards) of subsequent versions of Army Regulation 635-200, to include the version currently in effect, provide that Soldiers who fail to meet the body fat standards set forth in Army Regulation 
600-9 are subject to involuntary separation when such condition is the sole basis for separation.  This chapter also provides that the service of those separated per this chapter will be characterized as honorable, unless an uncharacterized description of service is required for Soldiers in an entry level status.  Entry level status is defined as the first 180 days of continuous active duty. 

8.  Department of Defense Instruction 1332.28 provides, in pertinent part, that a discharge shall be deemed to be equitable unless in a discharge review, it is determined that the policies and procedures under which the applicant was discharged differ in material respects from those currently applicable on a Service-wide basis to discharges of the type under consideration, provided that there is substantial doubt that the applicant would have received the same discharge if relevant current policies and procedures had been available to the applicant at the time of the discharge proceedings under consideration.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her general discharge should be upgraded to an honorable discharge.

2.  The applicant's contentions were carefully considered, and were found to have merit.  The evidence of record clearly shows that her discharge was based solely on her failure to meet body fat standards, and that she was properly discharged under the provisions of Chapter 13, Army Regulation 635-200 which were in effect at the time.  However, under current regulatory guidance and policies, the applicant most certainly would have been issued an honorable discharge based solely on her failure to meet body fat standards.  Therefore, it would be appropriate at this time to correct her military records to show that she was honorably discharged on 26 July 1984.

BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by upgrading her general discharge of 26 July 1984 to an honorable discharge and by issuing to her an Honorable Discharge Certificate of that date.

2.  The Board wants to thank the applicant for the sacrifices she made in service to the United States during her military career.  The applicant and all Americans should be justifiably proud of her honorable service in arms.




      _______ _XXX   _______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080013983



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ABCMR Record of Proceedings (cont)                                         AR20080013983



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