IN THE CASE OF:	

		BOARD DATE:	  28 April 2009

		DOCKET NUMBER:  AR20090001100 


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, removal of the entry "Para 2-20, AR [Army Regulation] 601-280 applies" from his DD Form 214 (Report of Separation from Active Duty).

2.  The applicant states, in effect, that this entry should be removed because it is no longer relevant 30 years later.  He also states, in effect, that he was barred from reenlisting due to weight issues at the time of his separation from active duty.  When he was separated in October 1978, it is true that he did not meet the Army's weight guidelines.  This bar, plus the circle and the number 12, written on his DD Form 214 turns off people who see it.  People who do not read the whole DD Form 214 do not see the medals and awards and achievements he was given nor do they really look at the honorable discharge he received.  He has to point this out and explain many times when he has had to show his DD Form 214.  He further states, in effect, that this causes a little injustice and he would like it changed.

3.  The applicant provides no additional documentary evidence in support of his 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 he underwent a physical examination on 22 October 1975, for his enlistment.  The Standard Form 88 (Report of Medical Examination) states his height as 73 3/4 inches and his weight as 220 pounds.  The applicant specified that he had been rejected from military service in the United States Navy in September 1973 for being overweight and he was using a dietary plan for weight loss.  He was found qualified for enlistment.

3.  The applicant enlisted in the United States Army Reserve (USAR), in pay grade E-1, on 22 October 1975.  He enlisted in the Regular Army, in pay grade 
E-3, on 24 October 1975, for 3 years.  He was promoted to the rank of sergeant, in pay grade E-5, on 28 April 1978.

4.  A DA Form 2496 (Disposition Form), dated 17 July 1978, shows the applicant was determined eligible for award of the Good Conduct Medal from the period 24 October 1975 to 23 October 1978.  The form also stated that he was not subject to any flagging (disciplinary) action.

5.  The applicant's records do not show he was barred from reenlistment.

6.  The applicant's Personnel Qualification Record – Part II, Section IV (Personal and Family Data), shows his height as 74 inches and weight as 215 pounds.  

7.  There is no evidence in the applicant's records to show he underwent a separation physical examination prior to his release from active duty.  

8.  The applicant was honorably released from active duty, in pay grade E-5, on 23 October 1978, under the provisions of Army Regulation 635-200 (Enlisted Separations), Chapter 2, and was transferred from the USAR Control Group (Reinforcement).  He was credited with 3 years net active service.  At the time of his separation, he was 25 years old.


9.  The applicant's records contain two copies of his DD Form 214, copy number 2 and copy number 5.  Copy number 2 contains the entries "Relief from active duty" in item 9a (Type of Separation), "Chapter 2, Army Regulation 635-200, SPD LBK" in item 9c (Authority and Reason), and "Para 2-20, AR [Army Regulation] 601-280 applies" in Item 27 (Remarks).  This copy of the DD Form 214 also contains a circle mark around the entry "SPD LBK" and what appears to be the number "12/" is annotated at the top of the form.  However, copy number 5 contains the entries "Relief from active duty" in item 9a, dashes through item 9c, and "Completion of required service (ETS) [expiration of term of service]" in Item 27.

10.  The applicant was honorably discharged from the USAR on 21 October 1981.

11.  Army Regulation 601-280 (Army Reenlistment Program), in effect at the time, prescribed the eligibility criteria and options available in the Army Reenlistment Program.  Chapter 2, paragraph 2-20, provided for barring from reenlistment individuals who did not meet retention medical fitness standards set forth in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  Paragraph 2-21.1 provided for the barring from reenlistment of individuals who did not meet the weight control criteria set forth in Army Regulation 600-9 (The Army Weight Control Program).  Appropriate copies of DD Forms 214 would be coded RE (Reentry) Code 3 unless otherwise indicated.

12.  Army Regulation 600-9, in effect at the time, specified that personnel who exceeded the screening table weight at Table 1 and the body fat standard for their current age group in paragraph 20c would not be allowed to reenlist or extend their reenlistment.  Table 1 showed a male with the height of 74 inches, between the ages of 21 to 27 years old, had a maximum allowable body weight of 206 pounds.  Paragraph 20c specified a maximum allowable body fat standard of 20 percent for a male between the ages of 21-27 years old.

13.  Army Regulation 635-200 (Personnel Separations - Enlisted Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 2 established policy and prescribed procedures for separating personnel who had completed the period of service for which enlisted, inducted, or ordered to active duty.  

14.  Army Regulation 635-5 (Separation Documents), in effect at the time, stated in pertinent part, that the DD Form 214 would be prepared for all personnel at the time of their retirement, discharge, or release from the active Army.  Item 9a 
would list one of following terms for enlisted personnel:  (1) Relief from active duty, or (2) Discharge, or (3) Retirement.  Item 9c would include a dashed line
(- - -) on all copies furnished the individual and the Veterans Administration (VA). Copies of the DD Form 214 to be filed in the Military Personnel Records Jacket (MPRJ) would be completed as follows:  (1) the statutory and/or regulatory authority for separation and the SPD (Separation Program Designator) in Item 9c.  Item 27 would contain the narrative reason for separation as indicated in Army Regulation 635-5-1 (SPD Codes) and be the last entry in the copy furnished the VA.  Table 3-1 specified that copy number 1 of the DD Form 214 would be delivered or mailed to the Soldier or filed in the MPRJ if not requested in writing by the individual.  Copies number 2, 4, 5, 7, and 8 would be filed in the Soldier's MPRJ.  Copy number 3 would be forwarded to the finance and accounting officer paying the Soldier.  Copy number 6 would be retained by the transfer activity for six months and then destroyed.  

15.  Army Regulation 635-5-1, in effect at the time, specified that the SPD code of "LBK" was appropriate for the voluntary discharge of enlisted personnel when the narrative reason for separation was "Completion of required service" under Army Regulation 635-200, chapter 2.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention, in effect, that any reference to him being barred from reenlistment for being overweight should be removed from his DD Form 214 was carefully considered and found to have merit.  The evidence of record confirms the applicant enlisted in the Regular Army on 24 October 1975 for
3 years.  He was honorably released from active duty on 23 October 1978, at the completion of his 3 years.  

2.  While the applicant did not submit a copy of his DD Form 214 with his application, his records contain copies number 2 and 5 of his DD Form 214.  Copy number 2 of his DD Form 214 contains an administrative error.  Army Regulation 601-280, paragraph 2-20 barred reenlistment of individuals who did not meet the medical fitness standards.  As there is no evidence this was the case for the applicant, this entry should not have been entered in item 27.  Copy number 5 of his DD Form 214 contains the entry "Completion of required service (ETS)."  This entry appropriately describes the applicant's release from active duty.  Therefore, it would be appropriate to delete the entry "Para 2-20, AR 601-280 applies) and adding the entry "Completion of required service (ETS)" in item 27 of copy number 2 of his DD Form 214.

3.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

BOARD VOTE:

___X____  ____X___  ____X__  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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:

   a.  deleting from item 27 of copy number 2 of the applicant's DD Form 214 the entry "Para 2-20, AR 601-280 applies";
   
   b.  adding to item 27 of copy number 2 of the applicant's DD Form 214 the entry "Completion of required service (ETS)"; and
   
   c.  providing the applicant a correction to his DD Form 214 that includes these changes.



      __________X_____________
               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)                                         AR20090001100



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ABCMR Record of Proceedings (cont)                                         AR20090001100



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