BOARD DATE:	  30 September 2010

		DOCKET NUMBER:  AR20100010178


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 (GD) be upgraded to an honorable discharge (HD).

2.  The applicant states he was separated from the Army because he was overweight and couldn't pass the Army Physical Fitness Test (APFT).  He explains he had medical issues where he was on temporary physical profile for 3 months because of an ankle injury.  He adds that during his Germany tour of duty his son was ill and was medically evacuated to the United States; the entire family was then transferred to the United States.

3.  The applicant provides no additional documentation.

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 a Regular Army Soldier, having enlisted for 4 years on 5 March 1986.  His Standard Form 88 (Report of Medical Examination) at the time of his enlistment shows he was reported to be 70 inches tall and weigh 177 pounds.

3.  The applicant was trained in, awarded, and worked in military occupational specialty 71G (Patient Administration Specialist).  His first permanent duty assignment was Germany; he arrived there on 2 September 1986.

4.  In Germany the applicant gained weight and was determined by his chain of command to be overweight, but within body fat limits.  The applicant also failed three APFT's.  He was given a bar to reenlistment and, although he was promotable from private first class (PFC)/E-3 to specialist (SPC)/E-4, he was placed in a non-promotable status because of the bar.

5.  In Germany the applicant was counseled for failing to perform guard duty in the appropriate manner on 15 November 1986, for failing to pass the APFT, and for indebtedness (writing checks with insufficient funds in his checking account).

6.  The applicant departed Germany on 4 February 1988 for an assignment to Fort Jackson, SC.  When he arrived at his new unit, he was wearing the rank of SPC.  When questioned about his rank, he stated he had passed the APFT and the bar was removed shortly before leaving Germany.  A subsequent investigation revealed the applicant's story to be false.  He had not passed the APFT, the bar was still in place, and he was still in a non-promotable status.

7.  At Fort Jackson the applicant was placed in the Army Weight Control Program.  Because he continued to fail the APFT, he was placed in a remedial physical training program.  The bar to reenlistment was periodically reviewed, but remained in place.  The applicant also failed to make progress in the weight reduction program and he had more incidents of indebtedness.

8.  On 19 December 1988, the applicant's company commander notified him of her intent to separate him for unsatisfactory performance under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 13.  He underwent a separation physical examination on 19 December 1988.  The Standard Form 88 recorded his height and weight as 69 inches and 220 pounds.  On 27 December 1988, the applicant consulted with legal counsel and acknowledged notification of the intended administrative separation action.  He provided a statement in his own behalf.

9.  On 3 January 1989, the applicant's company commander forwarded a recommendation for separation under the provisions of Army Regulation 
635-200, paragraph 13-2a, to the approval authority.  The company commander recommended an HD.  On 9 January 1989, the approving authority accepted the recommendation and directed the applicant be separated, but with a GD.

10.  On 19 January 1989, the applicant was discharged with a GD for unsatisfactory performance under the provisions of Army Regulation 635-200, chapter 13.

11.  There is no record the applicant petitioned the Army Discharge Review Board seeking a discharge upgrade during that board's 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, provided for separation due to unsatisfactory performance when in the commander's judgment the individual will not become a satisfactory soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation would be characterized as honorable or under honorable conditions.

13.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests upgrade of his GD to an HD.

2.  The applicant entered the Army within allowable weight standards.  He successfully completed basic and advanced individual training, during which he was required to take and pass the APFT.  When he arrived at his first permanent duty station, he gained weight and allowed his physical conditioning to lapse.  He failed multiple APFT's and was barred from reenlistment.  Additionally, he wrote check(s) with insufficient funds in his account.

3.  When the applicant left Germany for Fort Jackson, he reported with an incorrect rank, then lied when asked why he was wearing SPC rank when his records showed he was a PFC.  At Fort Jackson, he failed to control his weight and he failed to pass the APFT.  Additionally, he had other incidents of cashing bad checks.

4.  The applicant's discharge proceedings were conducted in accordance with law and regulations applicable at the time.  He consulted with legal counsel and acknowledged he understood the nature of the separation action under the provisions of chapter 13, Army Regulation 635-200.  Although he could have received an HD, the character of his discharge is commensurate with his overall record of military service.

5.  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 the aforementioned 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)                                         AR20100010178



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ABCMR Record of Proceedings (cont)                                         AR20100010178



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