IN THE CASE OF:	  

		BOARD DATE:	        25 August 2009

		DOCKET NUMBER:  AR20090003601 


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, correction of his records to show he completed 20 years of active duty for a length of service retirement with entitlement to all privileges and benefits.  

2.  The applicant states he was discharged based on mistakes by others and he did nothing wrong.  

3.  The applicant provides two letters addressed to his congressman, dated 11 February 2009; and copies of numerous documents from his service personnel record (Packets 1 and 2) 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 was inducted into the Army of the United States on 29 November 1966.  He was given a physical profile of 211121 and determined physically qualified.  His DA Form 47 (Record of Induction) shows he was previously determined not qualified for induction due to obesity and defective vision.  At the completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 94B (cook).  He was later reclassified into MOS 71N (traffic management coordinator).  The applicant was honorably discharged on 2 October 1968 for enlistment in the Regular Army.  His highest grade attained was staff sergeant.  

3.  The applicant enlisted in the Regular Army on 3 October 1968 and served until he was honorably discharged on 29 August 1974 for immediate reenlistment.  He reenlisted on 30 August 1974.  

4.  The applicant was placed on the Army Weight Control Program (AWCP) on 19 December 1978, weighing 325 pounds.  He was given a bar to reenlistment  due to apathy and lack of progress in the AWCP.  There is no evidence which indicates the bar to reenlistment was removed.  

5.  On 3 September 1980, the applicant was again entered into the AWCP, weighing 285 pounds at that time.  

6.  On 18 November 1980, the applicant's unit was informed that the applicant's official height and weight was 74 inches and 262 pounds.  His service records contain a DA Form 2496 (Disposition Form) which shows his weight standard was 245 pounds.  

7.  The applicant was discharged on 15 January 1981 for immediate reenlistment.  He had reduced his weight to 244 pounds at the time of his reenlistment.  

8.  The applicant reenlisted in the Regular Army on 16 January 1981 for a period of five years.  His DD Form 4/1 (Enlistment/Reenlistment Document - Armed Forces of the United States) indicated he had no waiver for this period of reenlistment and was certified as qualified for continued service.  At the time of his reenlistment, the applicant weighed 244 pounds.  

9.  In a 30 January 1981 letter, the applicant's commanding officer congratulated him for achieving his weight goal under the AWCP and consequently was allowed to reenlist for a term of five years.  The memorandum indicated the applicant had reduced his weight from 325 pounds in May 1980 to 244 pounds in January 1981.  

10.  The applicant's service records contain a Weight Control Record which shows his weight at 277 pounds on 30 January 1982.  This was a weight gain of 33 pounds since his reenlistment in January 1981.  

11.  On 17 February 1982, the Commander, 6th General Dispensary recommended the applicant be enrolled in the AWCP.  

12.  On 31 March 1982, the Commander, Headquarters and Headquarters Detachment (HHD), Allied Forces Central Europe (AFCENT) Support Activity recommended the applicant be retained on active duty because of his professional performance of duties and his dedication as an noncommissioned officer (NCO).  

13.  In a 13 May 1982 memorandum, the Commander, HHD, AFCENT Support Activity recommended the applicant be discharged.  After close monitoring of the applicant's progress both in the AWCP and duty performance, the commander changed his recommendation for retention based on the applicant's inability to perform at his grade potential and his lack of progress in the AWCP.  The commander indicated that the applicant had gained back 34 pounds following his reenlistment in January 1981.  Also, the commander recommended the applicant's erroneous enlistment not be legitimatized and that he be discharged from the U.S. Army.  

14.  In a 4 August 1982 letter, the Adjutant General, Headquarters, 21st Support Command, indicated the applicant reenlisted on 16 January 1981 for a period of five years while he was a member of 2nd Movements Region, 4th TRANSCOM.  Prior to the applicant's reenlistment, he was in the Overweight Control Program, weighing as much as 100 pounds over the weight limit of 214 outlined in Appendix A, Army Regulation 600-9, for his height and sex.  When examined by a physician upon entry into the program, the applicant was erroneously assigned a goal weight of 245 pounds (the weight allowed for initial enlistees of his height and sex).  The letter further indicated the applicant met his erroneously assigned weight goal, dropping to 244 pounds, and was then permitted to reenlist.  There is no indication that any commander approved the new weight standard, or that any exception to policy was granted to permit him to reenlist.  

15.  In a 22 September 1982 letter, the Chief, Retention and Transition Branch notified Headquarters, 21st Support Command that the applicant's reenlistment (16 January 1981) was erroneous.  The memorandum indicated that the requirement for all Soldiers reenlisting with a weight in excess of that listed for their height in Army Regulation 600-9 (AWCP) to obtain an Exception to Policy approved by General Courts Martial Authority existed since August 1979.  The memorandum indicated that the fact the applicant met an erroneous goal weight established by medical authority did not make him eligible for reenlistment   The goal weight would have been the basis for an Exception to Policy request to GCMA, which if approved, would have allowed the applicant to reenlist.  

16.  On 10 December 1982, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 7, Section II by reason of erroneous entry reenlistment or extension with issuance of a general discharge.  At the time of his discharge, the applicant had completed a total of 16 years and 13 days of active military service.  

17.  On 21 February 1984, the Army Discharge Review Board upgraded the applicant's discharge from general under honorable conditions to fully honorable.  
On 5 February 1986, the ABCMR denied the applicant's request to be reinstated on active duty.

18.  Army Regulation 635-200, chapter 12 sets policies and procedures for voluntary retirement of Soldiers because of length of service and governs the retirement of Soldiers (Active Army, Army National Guard of the United States, and U.S. Army Reserve) who are retiring in their enlisted status.  Paragraph 12-4 states in pertinent part that a Soldier who has completed 20 but less than 30 years of active Federal service in the U.S. Armed Forces may be retired at his or her request.  

19.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Section III, paragraph 7-15 of that regulation provides, in pertinent part, that a Soldier may be separated on the basis of an erroneous enlistment, induction, or extension of enlistment per guidance in chapter 1, Section II.  When it is discovered that a Soldier's enlistment or extension is erroneous because he/she failed to meet the qualifications for enlistment or reenlistment, the unit commander will initiate action to obtain authority to retain, discharge, or release the Soldier from active duty or active duty training.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was discharged based on mistakes by others is noted.  However, the evidence of record shows his administrative separation under the provisions Army Regulation 635-200, chapter 7 by reason of an erroneous enlistment was administratively correct and in conformance with applicable regulations.  

2.  Records show the applicant reenlisted on 16 January 1981.  At the time of his reenlistment, he was in the AWCP and had reduced his weight from 325 pounds to 244 pounds.  However, there is no evidence which shows he was granted a waiver as an exception to policy prior to his reenlistment.  Even though the applicant's chain of command initially recommended that he be retained on active duty, it was later recommended that he be discharged due to his inability to perform at his grade potential and his lack of progress in the AWCP (regained 34 pounds).  

3.  The applicant was separated from active duty under the provisions of Army Regulation 635-200, chapter 7 for erroneous entry reenlistment or extension.  At the time of his discharge, he had completed 16 years and 13 days total active military service.  

4.  Based on the governing regulation statute, the applicant is required to complete 20 years but less than 30 years of active Federal service for a length of service retirement.  Since the applicant completed 16 years total active service, he is not eligible for a length of service retirement or retirement benefits.  

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.



      ___________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)                                         AR20090003601





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ABCMR Record of Proceedings (cont)                                         AR20090003601



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