BOARD DATE:	  10 May 2011

		DOCKET NUMBER:  AR20100024512 


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 records be corrected to show he is entitled to severance pay.

2.  The applicant states he was forced out of the Army and never counseled for being overweight.  If he had been properly counseled, he would have volunteered to get out and he would have received severance pay.  He was not given an opportunity to lose weight and he was not given an exit physical.  He had to repay $3,000.00 [for a Selective Reenlistment Bonus] because he still had 3 years remaining on his enlistment contract.  He is currently in receipt of a 
50-percent disability rating from the Department of Veterans Affairs (VA).

3.  The applicant provides copies of a letter from the Deputy Chief, Legislative Affairs, Office of the Deputy Chief of Staff, G-1, to the applicant's Congressional representative and a personal letter in response to an unidentified action or letter.

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 service medical and dental records are believed to be on permanent loan to the VA and are not available for review.  When his records were transferred to the VA is not of record.

3.  The applicant served in the Regular Army from 4 April 1978 through 2 August 1989 in military occupational specialty 91C (Practical Nurse).  He attained the rank of staff sergeant.

4.  The applicant's Enlisted Evaluation Report (EER) for the period February 1987 through January 1988, dated 7 March 1988, shows he failed his annual Army Physical Fitness Test (APFT) conducted in December 1987 and failed to meet weight standards, weighing in at 194 pounds, an increase of 10 pounds over the previous year's evaluation.  He was taped and found to be 1 percent over the maximum allowable body fat standards.  He was placed in remedial physical fitness training and weight reduction programs and, at the time of the completion of the EER, was shown to be making adequate progress.

5.  An EER for the period February 1988 through May 1988, dated 7 July 1988, shows the applicant passed the February 1988 APFT.  However, he failed the weight standards, again weighing in at 194 pounds.

6.  A 20 January 1989 memorandum from the Army Enlisted Records and Evaluation Center states that the Calendar Year 1988 Sergeant First Class Review Board reviewed his file and determined he was to be barred from reenlistment under the Qualitative Management Program (QMP).  The areas of discrepancy noted were his two failed weight standards.

7.  On 13 February 1989, a DA Form 268 (Report of Suspension of Favorable Personnel Actions (Flag)) was initiated for his placement in the Army Weight Control Program.

8.  On 17 February 1989, a Department of the Army (DA) bar to reenlistment under QMP was imposed.  A formal letter, dated 3 March 1989, was forwarded to his command notifying it of this action.

9.  On 20 March 1989, the applicant's unit commander counseled him on the DA bar concerning his options and the potential impact of the DA bar to reenlistment.

10.  On 21 March 1989, the applicant acknowledged that he had carefully read, been counseled on, and understood his options under the QMP bar.  He elected not to appeal the bar or request to complete his remaining term of enlistment.  He requested to be discharged effective 1 May 1989.  This election included acknowledgement that any unearned portion of a reenlistment bonus would be recouped.

11.  The applicant was honorably discharged on 2 August 1989 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 16-5a, for a DA-imposed bar to reenlistment with a separation program designator (SPD) code of KGF and a reentry eligibility code of "4."  He completed 11 years, 3 months, and 29 days of creditable service.

12.  The applicant's EER for the period June 1988 through July 1989, dated 14 August 1989, shows that in March 1989 the applicant passed the APFT and met weight standards.  He had returned to his 1986 weight of 184 pounds.

13.  The undated letter from the applicant states that when he was notified of his bar to reenlistment, he contacted the battalion command sergeant major who recommended he take a week to consider his options.  He then met with several other members of his chain of command and was told it would be impossible to get the bar lifted.  He went to the Judge Advocate General's (JAG) office and was told the same.  He states he was never told he could overcome the bar.  He cites a portion of the Department of Defense (DOD) criteria for eligibility for separation pay.  He states he was not given a separation medical examination and his medical records were not processed for veterans' benefits, causing him to lose 15 years of VA benefits.

14.  The 6 August 2010 letter to the applicant's Congressional representative from the Deputy Chief, Legislative Affairs, states the applicant correctly cited three of the criteria that make a Soldier eligible for full separation pay; however, a DA-imposed bar to reenlistment negates a Soldier's retention status.  Therefore, the applicant was not eligible for separation pay.

15.  Army Regulation 635-200 sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  As in effect at the time, it states that Soldiers who choose not to appeal the QMP selection for denial of continued service, or whose appeals are denied, will be involuntarily discharged.  Soldiers who choose not to appeal may request voluntary discharge prior to the expiration of their periods of enlistment.

16.  Army Regulation 635-5-1 (SPD Codes), in effect at that time, prescribed the specific authorities and reasons for separating Soldiers from active duty and the SPD codes to be entered on the DD Form 214.  The 1982 version prescribes SPD code JGF or KGF when the authority for separation is Army Regulation 
635-200, paragraph 16-5.  It shows SPD code JGF is for involuntary discharge for failure to meet minimum qualifications for retention and SPD code KGF is for voluntary discharge for failure to meet minimum qualifications for retention.

17.  DOD Financial Management Regulation, volume 7A, chapter 35, subsection 3502 (Separation Pay (Nondisability)), states that as of 20 June 1991, full payment of nondisability separation pay was authorized to military service members of the Regular and Reserve Components who have been involuntarily separated from active duty and have met four conditions.  Prior to this date there was no provision for nondisability separation pay.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he was forced out of the Army and never counseled for being overweight.  He claims that if he had been properly counseled, he would have volunteered to get out and he would have received severance pay.

2.  Whether or not the applicant was afforded a medical examination at the time of his separation has no bearing on the issue of entitlement to separation pay.  He was discharged for the DA bar to reenlistment, not for an unfitting medical condition.

3.  Further, it is not the responsibility of the military to initiate an application for VA benefits.  It is the responsibility of the veteran to apply for and provide the necessary supporting documentation to request a disability evaluation by the VA. 
The fact that the applicant did not do so until 15 years after his discharge has no bearing on his entitlement to separation pay.

4.  As a staff sergeant the applicant would have been well aware of the requirements for maintaining weight and physical fitness standards.  He is shown to have been placed in a remedial APFT and weight loss program following his first failure to meet standards.  This would indicate he had some counseling, even if it was not made a part of his official record.

5.  He was able to pass an APFT administered 2 months after his initial failure, but he had not lost any weight at that time.  The following year he again passed the APFT and was shown to have met the weight standards.

6.  His successful return to weight standards does not negate the two earlier failures and it was based on those failures that the applicant was barred from reenlistment under QMP.  He was properly separated for the DA-imposed bar to reenlistment.

7.  The applicant was counseled on his options upon notification of the bar.  He elected not to appeal the decision and requested separation.  By his own statements he did seek counseling from a number personnel, including JAG.

8.  At the time of his separation there was no provision for nondisability separation pay and the 1991 change in law did not have any retroactive provisions.  Therefore, no entitlement existed for separation pay.

9.  Based on the above facts and findings, there is insufficient evidence to warrant any correction of the applicant's record and his request for separation pay should be denied.

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 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)                                         AR20100024512



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ABCMR Record of Proceedings (cont)                                         AR20100024512



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