IN THE CASE OF:	  

		BOARD DATE:	  17 November 2009

		DOCKET NUMBER:  AR20090010980 


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 reinstatement into the U.S. Army Reserve (USAR) Active Guard Reserve (AGR) program; assignment back into his former unit, the 208th Transportation Company, Tucson, AZ; and payment of lost wages.

2.  The applicant states that his command failed to counsel him and/or enroll him into the Army Weight Control Program (AWCP) subsequent to exceeding weight standards and failing the Army Physical Fitness Test (APFT).  He adds that his overweight is a result of a medical condition and that he was referred to an endocrinologist.  Additionally, he was never given a chance to retake the APFT.

3.  The applicant provides the following additional documentary evidence in support of his request:

	a.  an undated self-authored statement;

	b.  copies of Orders R-01-680158, R-04-781930, and R-01-680158A1, issued by the U.S. Army Human Resources Command (USAHRC), St. Louis, MO, on 10 January 2006, 3 April 2007, and 10 February 2009, respectively;

	c.  a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 11 March 2009;

	d.  copies of his DA Forms 2166-8 (Noncommissioned Officer (NCO) Evaluation Report) for the periods 20080302-20080804, 20070302-20080301, 20060901-20070301, 20060301-20060813, and 200510-200602;
	e.  five statements of support/letters of recommendations from junior and senior NCOs;

	f.  a copy of a DA Form 3349 (Physical Profile), dated 6 February 2009;

	g.  a copy of a Standard Form 513 (Medical Record-Consultation Sheet), dated 2 February 2009;

	h.  copies of several DA Forms 705 (APFT Scorecard), dated on various dates throughout his military service;

	i.  an extract of Army Regulation 600-9 (The Army Weight Control Program), dated 27 November 2006;

	j.  various electronic mail messages, dated on miscellaneous dates in 2008 and 2009;

	j.  a copy of his battalion commander's memorandum, dated 2 April 2009, regarding his redress and suspension of favorable personnel action.
 
	k.  copies of DA Forms 268 (Report to Suspend Favorable Personnel Action (Flag)), dated 4 May 2008, 18 May 2008, and 12 July 2008; and

	l.  various Excel Worksheets, proposing a physical fitness program.

CONSIDERATION OF EVIDENCE: 

1.  The applicant's records show he enlisted in the USAR for a period of 8 years on 28 February 2000.  He subsequently entered active duty for training, completed basic combat and advanced individual training, and was awarded military occupational specialty (MOS) 63B (Light Vehicle Mechanic).  He was assigned to the 208th Transportation Company, Tucson, AZ.

2.  On 7 December 2003, the applicant was ordered to active duty in support of Operation Iraqi Freedom and subsequently served in Iraq from 20 February 2004 to 25 February 2005.  He was honorably released from active duty to the control of his USAR unit on 26 March 2005.

3.  On 19 May 2005, the applicant executed a 6-year reenlistment in the USAR.  His expiration of term of service (ETS) date was established as 18 May 2011.  He was promoted to sergeant/E-5 on 1 October 2005.

4.  On or about 15 October 2005, the applicant submitted an application for entry into the USAR AGR program.  His application was accepted and his name was added to the consideration list pending a need/vacancy for his grade and MOS.

5.  On 10 January 2006, USAHRC-St. Louis, MO, published 
Orders R-01-680158 ordering the applicant to active duty in an AGR status for a period of 3 years effective 21 February 2006.  He was assigned to Headquarters, 877th Quartermaster Company, Albuquerque, NM.  However, on 3 April 2007, he was reassigned to the 208th Transportation Company, Tucson, AZ.

6.  On 4 May 2008, the applicant's battalion commander initiated a flag against him for adverse action.  His records indicate that he was pending an investigation by the U.S. Army Criminal Investigation Command (USACIDC, also referred to simply as CID)).  The facts and circumstances associated with this investigation are not available for review with this case.

7.  On 18 May 2008, the applicant's unit conducted a record APFT and weigh-in. 
The applicant's DA Form 705 shows he failed all three events of the APFT (push-ups, sit-ups, and 2-mile run) and exceeded both the weight table and body fat standards for his height and age group.  Accordingly, on 18 May 2008, the applicant's immediate commander initiated a flag against him for APFT failure.

8.  On 12 July 2008, the applicant's unit conducted a second weigh-in.  The applicant again exceeded both the weight table and body fat standards.  Accordingly, his immediate commander initiated a flag against him for AWCP on the same date.

9.  On 3 October 2008, the applicant underwent a diagnostic APFT and weigh-in. 
His DA Form 705 again shows he failed all three events of the APFT and exceeded both the weight table and body fat standards for his height and age group.

10.  On 17 February 2009, USAHRC-St. Louis, MO, published 
Orders C-02-903129, directing the applicant's release from active duty by reason of completion of his required active service.

11.  On 11 March 2009, the applicant was honorably released from active duty under the provisions of chapter 4 of Army Regulation 600-200 (Personnel Separations) by reason of completion of required service and transferred to the USAR Control Group (Reinforcement).  The DD Form 214 he was issued shows he completed 3 years and 21 days of active service.

12.  On 9 March 2009, by letter addressed to the applicant's Member of Congress, the Director of Enlisted Management Directorate, USAHRC-St. Louis, MO, stated that the applicant's desire to stay in the AGR program was noble; however, his request to be continued in the AGR program could not be favorably considered.  The Director also stated that the Army's highest priority was the welfare of the country and that USAHRC had a responsibility to the AGR program to retain only highly-qualified Soldiers.  All Soldiers in the AGR program must meet the regulatory body composition and medical standards for retention.  The applicant failed to maintain the minimum physical and medical standards for retention in the AGR program.

13.  On 2 April 2009, by memorandum addressed to the applicant, the applicant's battalion commander stated that his request for redress, dated 25 February 2009, was denied [a copy of his request for redress is not available for review with this case].  The battalion commander added that:

	a.  the suspension of favorable action dated 4 May 2008 was initiated by her based on a CID investigation in Fort Bliss, TX, that found probable cause that he had engaged in criminal acts.  While that CID investigation had been completed, the flag remained in place because of his pending adverse action on this matter, not to mention an Equal Opportunity complaint that was subsequently filed against him.  In all events, the issue of the non-transferable flag in this regard is moot because he had been reassigned to the Individual Ready Reserve (IRR); and

	b.  the flag in regard to his failure to meet Army height and weight standards in accordance with Army Regulation 600-9 was not only valid but required by Army regulations.  As far as she was aware, he had not provided any documentation showing he suffered from a medical condition that prevented him from meeting Army height and weight standards and that his provisional diagnosis, according to his own document, "was 'obesity exogenous' (obesity caused by overeating)."

14.  The applicant submitted the following additional documentary evidence in support of his request.

	a.  In his undated self-authored statement the applicant attributed his weight gain to stress caused by a custody battle pertaining to children.  He also faults his unit for not helping him overcome his APFT and weight problems by not referring him to the appropriate support channels.  He adds that after having experienced combat, he views physical fitness and weight standards in a different way.  He adds that he believes that in combat, the body reacts in a different way and that is it the adrenaline that allows the Soldier to push himself.  He also states that a person does not have to pass the APFT or meet the height/weight standards to go to war.

	b.  Five statements of support/letters of recommendations from junior and senior NCOs in which the authors remark on the applicant's abilities, technical skills, professionalism, and experience.  The authors also describe him as an asset to any unit.

	c.  A copy of a DA Form 3349, dated 6 February 2009, shows he sprained his hand.

	d.  Various electronic mail exchanges with several individuals on miscellaneous dates regarding the flags in his records.

	e.  A copy of a consultation sheet, dated 2 February 2009, issued by the 355th Medical Group, Tucson, AZ, shows that he was provisionally diagnosed with obesity exogenous [overweight caused by consuming more food than the person's activity level warrants, leading to increased fat storage] and that he was referred to an endocrinologist.

	f.  Copies of his NCO Evaluation Reports for the following periods showing the following entries with regard to APFT and height/weight:

		(1)  200510-200602, APFT:  PASS 200508, Height/Weight:  68 inches/
224 pounds, YES [met standards].

		(2)  20060301-20060816, APFT:  PASS 20060415, Height/Weight:  68 inches, 224 pounds, YES [met standards].

		(3)  20060901-20070301, APFT:  [not taken], Height/Weight:  68 inches/
220 pounds, YES [met standards].

		(4)  20070302-20080301, APFT:  PASS 20070911, Height/Weight:  68 inches/235 pounds, YES [met standards].

		(5)  20080302-20080804, APFT:  FAIL 20080518, Height/Weight:  68 inches/250 pounds, NO [did not meet standards].

15.  Army Regulation 135-18 (The Active Guard Reserve Program) prescribes the policy and procedures for the administration of the AGR Program.  It provides Army policy for the selection, utilization, and administration of Army National Guard (ARNG) and USAR Soldiers ordered to active duty.  The objective of the AGR Program is to provide highly qualified officers, warrant officers, and enlisted Soldiers to meet the full-time support requirements for ARNG and USAR projects and programs.  This regulation states, in pertinent part, that the initial tour of AGR duty is 3 years.

16.  Table 2-4 of Army Regulation 135-18 provides for qualification for subsequent duty in the AGR program.  Rule C states that the Soldier must meet the body composition standards prescribed in Army Regulation 600-9 and the medical fitness standards for retention per Army Regulation 40-501 (Standards of Medical Fitness).  Additionally, Table 2-6 of this regulation provides for the non-waivable disqualification for subsequent duty in the AGR program.  Rule C states that Soldiers who not meet the physical and medical requirements specified in Table 2-4, Rule C, are disqualified from subsequent duty in the AGR program and that this disqualification is not waivable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be reinstated back into the AGR program, assigned to his former unit, and be reimbursed for lost wages.

2.  The evidence of record shows that the applicant executed a 6-year reenlistment in the USAR on 19 May 2005.  He subsequently applied for and entered the AGR program for a period of 3 years.  There was never a contingency upon his acceptance into the AGR program that he would continue in this program until his ETS date in May 2011.

3.  The evidence of record also shows that during his AGR service, the applicant failed a record APFT and exceeded Army weight standards.  Accordingly, his unit commander initiated suspension of favorable personnel actions against him.  This action placed him in a non-waivable disqualification for continuation in the AGR program.  He petitioned his battalion commander to extend his AGR tour, but his request was denied.  He was ultimately released from active duty to his USAR unit by reason of completion of his required service.  There is neither an error nor an injustice.

4.  There is no evidence in the applicant's records that his weight was a result of a medical condition.  Additionally, continuation in the AGR program is neither automatic nor an entitlement.  It is contingent upon meeting certain requirements and a favorable recommendation by his chain of command.  By his own admission, the applicant states that he does not believe a Soldier should have to pass the APFT and the weight control standards to go to war.

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 failed to submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief.

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)                                         AR20090010980



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ABCMR Record of Proceedings (cont)                                         AR20090010980



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