IN THE CASE OF:	  

		BOARD DATE:	       16 JUNE 2009

		DOCKET NUMBER:  AR20090001959 


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 the reason for his discharge be changed to physical disability.

2.  The applicant states, in effect, that he gained weight because he could not do physical training due to a back injury and a motor vehicle accident.  Now he has an 80 percent service connected disability from the Department of Veterans Affairs (VA).  Until recently, no one told him  that he could apply to the Army to have the reason for his separation changed to disability.   

3.  The applicant provides, in support of his request, copies of five pages of service medical records, his DD Form 214 (Certificate of Release or Discharge from Active Duty), five pages of weight control/counseling forms, the report of his separation physical examination, and two pages of VA medical records.

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 enlisted on 12 August 1982, completed training as an armor crewman and was stationed at Fort Hood, Texas until February 1984 when he was relocated to Fort Carson, Colorado.  He was awarded the Good Conduct Medal on 16 October 1985.

3.  The applicant weighed 200 pounds on 6 August 1986 and his body fat was determined to be an allowable 22 percent.  

4.  On 19 November 1986, the applicant was determined to be 2.16 percent over the allowed limit of 22 percent body fat.  He was placed on the weight control program and given a goal of losing 3 to 8 pounds per week.  

5.  His body fat was calculated at 20.3 percent, on 3 April 1987 and he was removed from the weight control program.  

6.  On 8 April 1987, the applicant was counseled about failing the Army Physical Fitness Test (APFT) and, on 29 April 1987, he  was barred from reenlistment due to non-payment of debts.  Between August 1985 and February 1987, his bank had returned a total of 15 checks because of insufficient funds.

7.  The applicant was returned to the weight control program on 28 May 1987. On 24 June 1987, he was informed that separation action was being considered. On 13 July 1987, he was notified of recommended separation under the provisions of Army Regulation 636-200, chapter 5.  He consulted with counsel and was informed of his options and declined to submit statements in his own behalf. 

8.  On 21 July 1987, the applicant was released from active duty with an honorable characterization of service due to failure to meet weight control standards.  He was transferred to the United States Army Reserve (USAR) Control Group (Reinforcement).  He was discharged from the USAR on 15 March 1988 at the end of his obligated service.

9.  In January 1989, the applicant was determined to be within Army Weight standards and he was allowed to enlist in the USAR. 

10.  In December 1989, the applicant attended a USAR training course at Fort Lee, Virginia.  His weight was 209 pounds and he passed a body fat test.  On 27 September 1990, he was released from his USAR unit due to unsatisfactory participation and transferred to the USAR Control Group (Reinforcement).  He was discharged from the USAR on 7 January 1992.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  At that time, paragraph 5-15 governed the separation of enlisted personnel for failure to meet Army weight control standards.  It 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 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.
 
12.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  In pertinent part, it states the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  

13.   Title 10, U. S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

14.  The documents submitted by the applicant show that he complained of lower back pain, on 21 December 1983; fell on his right knee, on 23 December 1983; was involved in a jeep accident, on 17 May 1984, and suffered abrasions of his left knee, nose and forehead.  He weighed 182 pounds, on 5 August 1983.  The applicant  reported a strained back (lumbar region), on 16 April 1984, and returned for follow-up on 19 April.  He was over the 22 percent allowable body fat level on 19 November 1986 and failed the APFT on 3 December 1986.  On 30 January 1987, he received a monthly counseling statement about the weight control program, his unacceptable attitude and writing bad checks.  On 13 February 1987, the applicant was over the allowable body fat level by .31 percent and, on 28 May 1987, he was over by 2.21 percent.  He weighed 205 pounds at his 25 June 1987 separation physical.  According to VA medical records, he weighed 220 pounds on 16 May 1991 and 231 pounds on                18 December 1991.


DISCUSSION AND CONCLUSIONS:

1.  The applicant states, in effect, that he gained weight because he could not do physical training due to a back injury and a motor vehicle accident.  

2.  After being placed on the weight control program, the applicant met the weight control guideline, despite his physical problems.  He even met those guidelines after his separation from active duty and was allowed to enlist in the USAR.

3.  The available evidence does not show that the applicant was ever physically unable to perform his duty or that he should have been separated for physical disability.  

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




      _______ _   ___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)                                         AR20090001959





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ABCMR Record of Proceedings (cont)                                         AR20090001959



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