IN THE CASE OF:	

		BOARD DATE:	  29 December 2009

		DOCKET NUMBER:  AR20090013134 


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 that his general discharge be upgraded to a fully honorable discharge.

2.  The applicant states that he desires his discharge to be upgraded to fully honorable for the purposes of returning to school.  He goes on to state that he has become disabled in his back and now lives on Social Security Indemnity (SSI) and would like to be able to receive all the help needed for returning to school.  Having his discharge upgraded will provide him some assistance in going to school and finding new employment and being able to stop the SSI.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 in the Regular Army on 15 March 1983 for a period of 3 years, training as an infantryman and assignment to Europe.  He completed his one-station unit training (OSUT) at Fort Benning, Georgia and was transferred to Germany on 4 July 1983.  He was advanced to the pay grade of E-4 on 1 September 1984.

3.  He departed Germany on 29 December 1984 for assignment to Fort Benning.  He was married in Columbus, Georgia on 7 October 1985.

4.  On 12 March 1986, he reenlisted for a period of 6 years, stabilization at 
Fort Benning and a selective reenlistment bonus (SRB).

5.  On 19 November 1986, the applicant was placed on the overweight program after a medical determination was made that determined that his overweight condition was not due to a medical condition.  The applicant was 64 pounds overweight.

6.  On 31 July 1987, the applicant was counseled by his company commander regarding his failure to make progress or show any desire to lose weight in the weight control program over a period of 8 months.  He advised the applicant that he was initiating action to separate him from the service under the provisions of Army Regulation (AR) 600-9 for failure to meet Army weight standards.  The applicant non-concurred with the counseling session and  responded to the effect that he had written proof that when a wife is with child, the husband can and will gain weight and that he was placed on the program when his wife was 2 1/2 months pregnant.

7.  On 7 August 1987, the commander formally notified the applicant that he was recommending that he be separated from the service under the provisions of AR 635-200, paragraph 5-15 for failure to meet Army weight control standards.  He further advised the applicant that the least favorable characterization of service he could receive was honorable. 

8.  After consulting with counsel, the applicant waived his rights and elected to submit a statement in his own behalf in which he asserted that he was not receiving any support from his chain of command for his problems and that he wanted to stay in the Army.  He asserted that he needed 3 more months to lose the weight and then proceed on his assignment to Alaska, hopefully as a sergeant.

9.  The appropriate authority approved the recommendation for discharge on 11 September 1987 and directed that the applicant be furnished a General Discharge Certificate.

10.  Accordingly, the applicant was discharged under honorable conditions on 23 September 1987, under the provisions of Army Regulation 635-200, paragraph 5-15 due to failure to meet Army weight control standards.  He had served 4 years, 6 months, and 9 days of total active service.

11.  There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 5 of that regulation provided authorization for separation due to failure to meet Army Weight Control Standards.  It provided, in pertinent part, in paragraph 5-15, that for a discharge based on failure to meet Army weight control standards, the service of Soldiers separated under this paragraph would be characterized as honorable unless an entry level separation was required. 

DISCUSSION AND CONCLUSIONS:

1.  While it appears that the actions to administratively discharge the applicant due to his failure to meet Army weight control standards was appropriate, the applicant was formally notified at the time that the least favorable characterization he could receive would be honorable.

2.  It is also noted that the applicant received legal counsel based on his initial notification of receiving an honorable discharge.

3.  However, for reasons not explained in the available records, the approving authority directed that the applicant be issued a General Discharge Certificate.

4.  Therefore, it appears that there were irregularities in the separation process and that the applicant did not receive the honorable discharge that he was entitled to receive.

5.  Accordingly, it would be in the interest of justice to correct his records by upgrading his discharge to fully honorable and by issuing him an Honorable Discharge Certificate to replace the General Discharge Certificate now held by him.

BOARD VOTE:

___X___  ____X___  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by upgrading his 23 September 1987 discharge to fully honorable and by issuing him an Honorable Discharge Certificate to replace the General Discharge Certificate now held by him.




      _______ _   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)                                         AR20090013134





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ABCMR Record of Proceedings (cont)                                         AR20090013134



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