BOARD DATE:	 5 April 2011 

		DOCKET NUMBER:  AR20100025142 


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 an upgrade of his general discharge to an honorable discharge.

2.  The applicant states he was discharged for being 2 pounds overweight.  He was not given the opportunity to correct this deficiency.  His record shows he was diligent prior to this.  During his service, he received multiple awards and citations.  

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's records show he enlisted in the Regular Army for a period of 4 years on 15 January 1980 and held military occupational specialty 44B (Metal Worker).  He also executed a 13-month extension on 4 March 1982 and attained the rank/grade of sergeant/E-5. 

3.  His records also show he served in Germany from 27 January 1982 to 29 February 1984.  He was awarded the Army Service Ribbon, Overseas Service Ribbon, Army Achievement Medal, Army Good Conduct Medal, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

4.  On 1 December 1980, he departed his Fort Hood, TX, unit in an absent without leave (AWOL) status.  However, he returned to military control on 5 December 1980.

5.  His records show he underwent several unit weigh-ins during 1982 and 1983 and in each case he exceeded the weight and height table of Army Regulation 600-9 (The Army Weight Control Program).  He was previously enrolled in the weight control program but he met the standards on 16 August 1983.

6.  On 11 January 1984, he underwent a unit weigh-in and he exceeded the weight and height table of Army Regulation 600-9.  His maximum allowable weight was 175 pounds but he weighed 196 pounds.  Additionally, he exceeded the body fat standards by 8%.  He was determined not to be overweight due to medical reasons and he was determined to be fit to participate in the weight control/physical exercise program.  Therefore, he was recommended for enrollment in a weight reduction program with a goal of losing 21 pounds within 
6 months. 

7.  On 23 January 1984, the applicant notified his platoon sergeant that he wanted out of the military.  He stated that he knew he was overweight but he had no intention of losing the weight.  He also knew he had 1 year left before his separation date but he wanted to get out as soon as possible.

8.  On 24 January 1984, in a sworn statement, the applicant indicated that he wanted to be released from his remaining obligation to the Army.  He also stated he felt he could not lose the weight and maintain the weight as he should.  He requested that his commander initiate discharge action against him.   

9.  On 7 February 1984, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with chapter 13 of Army Regulation 635-200 (Personnel Separations) by reason of unsatisfactory performance.  The immediate commander stated the applicant was given ample time to comply with the weight standards of Army Regulation 600-9 but he was unable to conform to the standards.  His "substandard" failure, which demonstrated a lack of self-discipline and lack of motivation to maintain the required weight, left no other disposition but to discharge him.  The immediate commander recommended that he be issued a General Discharge Certificate.

10.  On 7 February 1984, the applicant acknowledged receipt of the commander's intent to separate him and consulted with legal counsel on 15 February 1984.  He was advised of the basis for the contemplated separation action for unsatisfactory performance, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He further acknowledged he understood that he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him, and declined to make a statement in his own behalf.

11.  On 15 February 1984, the applicant’s immediate commander initiated separation action against him in accordance with Army Regulation 635-200 by reason of unsatisfactory performance.  

12.  On 15 February 1984, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200 by reason of unsatisfactory performance and directed that the applicant be furnished a General Discharge Certificate.  Accordingly, the applicant was discharged on      1 March 1984.  His DD Form 214 confirms he was discharged with a characterization of service of under honorable conditions (general).  This form further confirms he completed a total of 4 years, 1 month, and 13 days of creditable military service and he had 4 days of lost time.

13.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance and provides, in pertinent part, that commanders will separate a member under this chapter when in the commander’s judgment the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.





15.  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 evidence of record shows the applicant displayed a pattern of unsatisfactory performance and did not conform to the Army weight standards or respond to counseling by his chain of command regarding his responsibility to meet Army standards. 

2.  The applicant's commander stated the applicant was given ample time to comply with the weight standards of Army Regulation 600-9 but he was unable to conform to the standards.  His failure, which demonstrated a lack of self-discipline and lack of motivation to maintain the required weight, left no other disposition but to discharge him.  Accordingly, his immediate commander initiated separation action against him.  

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

4.  Based on his failure to meet Army standards, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This substandard performance also renders his service unsatisfactory.  Therefore, the applicant is not entitled to an honorable discharge.

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)                                         AR20100025142



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ABCMR Record of Proceedings (cont)                                         AR20100025142



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