BOARD DATE:	  29 December 2009

		DOCKET NUMBER:  AR20090012395 


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 item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed to reflect a more favorable reason for discharge.

2.  The applicant states, in effect, the reason for his separation was overweight and not unsatisfactory performance.  He claims his service was exemplary and that this reason for discharge reflects poorly on his character when he is applying for jobs.  He would like it changed to one more favorable.

3.  The applicant provides an honorable discharge certificate and certificate of achievement 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 record shows he initially enlisted in the Regular Army on 5 February 1973 and served on active duty for 3 years until being honorably discharged on 4 February 1976.

3.  On 7 May 1981, the applicant again enlisted in the Regular Army for a period of 4 years and reentered active duty.  He was trained in and awarded military occupational specialty 13B (Cannon Crewman) and the highest rank/grade he attained while serving on active duty was specialist/E-4.

4.  The applicant's record shows that during his tenure on active duty he earned the Army Service Ribbon, National Defense Service Medal, Army of Occupation Medal, and Sharpshooter Marksmanship Qualification Badge with Rifle (M-16) Bar.  

5.  The applicant's record contains a DA Form 4856 (General Counseling), dated 5 January 1983.  This document shows the applicant was informed that his weight of 215 pounds exceeded the weight standard (203 pounds) for his height and that in order for him to meet the required weight standard he must lose 12 pounds.

6.  On 10 February 1983, the applicant's commander referred him to the troop medical clinic for a weight control medical evaluation.  The evaluating physician determined the applicant was obese and prescribed a weight loss of 20 pounds within 26 weeks.

7.  On 17 February 1983, the applicant was officially counseled and informed he was being enrolled in the weight loss program and was required to lose 20 pounds in 26 weeks with a weight reduction goal of 1 pound per week.  He was further informed that his failure to lose the required weight within the expected time could result in his elimination from the military.

8.  On 18 May 1983, the applicant was counseled (DA Form 4856) as a result of his skill qualification test (SQT) failure.

9.  On 26 August 1983, the applicant was counseled as a result of his unsatisfactory progress in losing the required weight and informed that he would be recommended for discharge under the provisions of chapter 13, Army Regulation 635-200 (Personnel Separations), if his weight loss was not on track by the next weigh in.

10.  On 12 October 1983, the applicant was counseled and informed that based on his weight gain of 9 pounds, separation action was being recommended on him under the provisions of chapter 13, Army Regulation 635-200, for weight program failure.

11.  On 28 November 1983, the unit commander notified the applicant that he intended to initiate separation action on him under the provisions of paragraph 13-2, Army Regulation 635-200, by reason of unsatisfactory performance for overweight.  The unit commander cited his reasons for taking the action as being the applicant's apathy toward military service, his poor personal appearance/condition, his lack of motivation, his overall unsatisfactory performance, and his failure to meet the weight requirements. 

12.  On 28 November 1983, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.  Subsequent to this counseling, he waived consideration of his case and a personal appearance before an administrative separation board and his right to consulting counsel.  He elected to submit a statement in his own behalf; however, this statement is not contained in the applicant's record.

13.  On 30 November 1983, the separation authority approved the separation action and directed the applicant's service be characterized as honorable.  The applicant was separated accordingly on 7 December 1983.  The DD Form 214 the applicant was issued upon his discharge shows he was separated under the provisions of chapter 13, Army Regulation 635-200, by reason of unsatisfactory performance.  It further shows he completed a total of 5 years, 7 months, and 1 day of creditable active military service.

14.  There is no indication in the record that the applicant applied to the Army Discharge Review Board (ADRB) for a change to the narrative reason of his discharge within the ADRB's 15-year statute of limitations.

15.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 13 provided the authority for the separation of enlisted personnel for unsatisfactory performance based on failure to meet body fat standards.  Members separated under these provisions could receive either an honorable or general discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that the entry contained in item 28 of his DD Form 214 be corrected to reflect a more favorable reason for discharge was carefully considered.  However, the evidence of record confirms his separation was a result of not only his failure to meet the weight standards but was also based on his overall unsatisfactory performance.  Further, his record shows he failed his SQT in May 1983, which is also an indication of his unsatisfactory performance.

2.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  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.



      ____________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)                                         AR20090012395



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ABCMR Record of Proceedings (cont)                                         AR20090012395



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