IN THE CASE OF:	  

		BOARD DATE:	  27 October 2009

		DOCKET NUMBER:  AR20090008757 


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 and authority listed on her DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be changed from Army Regulation 635-212 (Personnel Separations-Discharge-Unfitness and Unsuitability) to Army Regulation 600-9 (The Army Weight Control Program).  Additionally, she requests that her date of entry be changed to 30 November 1971. 

2.  The applicant states that Army Regulation 635-212 as cited on her DD Form 214 as the reason and authority for her discharge was not relevant.  She maintains that she was discharged for being overweight.  She also maintains that she had an enlistment examination conducted on 30 November 1971 and, therefore, her entry date should be corrected to reflect that date.  She adds that she would like her separation to reflect an additional 6 days so that she will be credited with 90 days of total active service in order to receive Department of Veterans Affairs (VA) benefits.  The applicant concludes that she needs her DD Form 214 to also show that she served "1 day during war time."

3.  The applicant provides a self-authored letter in support of her 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 record contains a DD Form 373 (United States Armed Forces – Consent. Declaration of Parent or Legal Guardian), dated 8 November 1971, that shows the applicant's legal guardian consented to her enlistment in the Army for a period of 3 years.  On 26 November 1971, the applicant submitted a DA Form 2280 (Application for Enlistment – Women's Army Corps).  On
30 November 1971, the applicant underwent a medical examination for the purpose of enlistment in the Regular Army (RA).  The results of this examination determined that she was qualified for enlistment in the RA.

3.  The applicant’s records contain a DD Form 4 (Enlistment Contract – Armed Forces of the United States).  Item 6 (Date of Enlistment/Induction) shows the entry "12 Jan[uary] 1972."  Item 57 (Oath of Enlistment) shows that on
12 January 1972, she enlisted in the Regular Army (RA) for a period of 3 years.  She signed the oath of enlistment.  Item 59 (Confirmation of Enlistment) shows that the applicant's oath was subscribed and duly sworn on 12 January 1972 by a Captain R_____ G. H___ of the Armed Forces Examining and Entrance Station (AFEES) in Montgomery, AL.

4.  On 27 March 1972, the applicant was notified of the commander's intent to recommend that she be discharged from the service under the provisions of Army Regulation 635-212 for unsuitability due to a defective attitude.  On
27 March 1972, the applicant acknowledged receipt of the notification.

5.  On 27 March 1972, the applicant underwent a mental status evaluation.  The evaluation found that the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, and she had the mental capacity to understand and participate in board proceedings.

6.  On 29 March 1972, the commander recommended that the applicant be separated under the provisions of paragraph 6b(3), Army Regulation 635-212, due to her defective attitude.  He stated that the applicant could not perform well in the area of personal appearance and maintenance due to her inability to adjust to the military environment.  He stated that the applicant was dependent upon others to do her work so that she could pass her inspections.  He offered that even with extra help, she could not perform up to the standards required of a member of the Corps.

7.  On 29 March 1972, the applicant consulted with military counsel.  After being advised of the basis for the contemplated separation, its effects, and the rights available to her, she waived her right to consideration of her case by a board of officers, to a personal appearance before a board of officers, and to counsel.  She also elected not to submit statements in her own behalf.

8.  On 4 April 1972, the appropriate authority approved the applicant's discharge under the provision of Army Regulation 635-212 and directed that an Honorable Discharge Certificate be issued.

9.  The applicant’s DD Form 214 shows she was honorably discharged on 7 April 1972, under the provisions of Army Regulation 635-212.  The applicant had completed 2 months and 26 days of total active service.

10.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unsuitability and for unfitness.  Paragraph 6b(3) of the regulation provided, in pertinent part, that an individual was subject to separation for unsuitability because of apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively.  

11.  Army Regulation 600-9 (Army Physical Fitness and Weight Control Program) was published on 30 November 1976 and not effective until 3 January 1977.  This publication incorporated the Army Weight Control Program.  This regulation provided that Soldiers failing to meet the minimum weight control standards were subject to separation under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Chapter 11 (Entry Level Status Performance and Conduct (Trainee Discharge Program) [for Soldiers with less than 180 days of active service] or chapter 13 (Separation for Unsuitability).

12.  On 1 February 1983, Army Regulation 600-9 (The Army Weight Control Program) was published with an effective date of 15 April 1983.  This revision implemented the guidance in DOD Directive 138.01, dated 29 June 1981, which established a weight control program in all the Services.  This regulation also superseded Army Regulation 600-9, dated 30 November 1976.

13.  Army Regulation 635-200, dated 1 October 1982, established the policies and procedures for the separation of enlisted personnel.  Interim Change Number I03, dated 15 April 1983, clarified the procedure for separation when a Soldier placed in a weight control program failed to comply with the standards listed in the revised Army Regulation 600-9.  This change also implemented DOD Directive 138.01, dated 29 June 1981.
14.  On 26 June 1996, Army Regulation 635-200, was revised, effective 26 July 1996 to add chapter 18 (Failure to Meet Body Fat Standards).  This chapter applied to Soldiers who failed to meet the body fat standards set forth in Army Regulation 600–9 when such condition was the sole basis for separation.

15.  Army Regulation 635-5 (Separation Documents), in effect at the time, established standardized policy for preparing and distributing the DD Form 214.  The regulation stated that the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  Item 11c (Reason and Authority [for separation]) will enter the authority for transfer or discharge by reference to the appropriate regulation, followed by the SPN [Separation Program Number] and descriptive reason for transfer or discharge, for example "AR 135-173, SPN 513, Essentiality to National Interest."  However, specified reasons for discharge will not be stated in 
words on the DD Form 214, including unsuitability, unfitness, and misconduct, among others.  In these cases, only the regulatory authority and SPN will be entered.

16.  Army Regulation 635-5 further stated that for item 17c (Date of Entry) enter the date entered on active duty or the date enlistment or reenlistment was accomplished for which a DD Form 214 was not previously issued.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the reason and authority for her separation should be changed to overweight under Army Regulation 600-9.  She also contends that her date of entry should be changed to 30 November 1971, the date of her enlistment examination.

2.  The applicant maintains that she was discharged for being overweight.  However, evidence of record shows that the applicant was notified by her chain of command and advised by military counsel that she was being separated under the provisions of Army Regulation 635-212 for unsuitability due to a defective attitude.  Further, evidence shows that she waived her right to consideration of her case by a board of officers, to a personal appearance before a board of officers, and to counsel.  She also elected not to submit a statement in her behalf.  The applicant has submitted neither probative evidence nor a convincing argument in support of her request to have the reason and authority changed on her DD Form 214 and she has not shown error or inequity to justify the relief she now seeks.


3.  The applicant further maintains that the date of entry listed in item 17c of her DD Form 214 should be changed to 30 November 1971, the date she completed her enlistment examination.  As cited above, the date of entry on the DD Form 214 represents the date a Soldier entered on active duty or the date enlistment or reenlistment was accomplished.  The applicant's DD Form 4 explicitly shows that on 12 January 1972, she enlisted in the U.S. Army and entered active duty for a period of 3 years.  There are no provisions in Army regulations that allow for the changing of a properly constituted separation document solely for the purpose of establishing eligibility for VA or other programs or benefits.  

4.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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



      ___________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)                                         AR20090008757



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ABCMR Record of Proceedings (cont)                                         AR20090008757


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