BOARD DATE:	  1 September 2011

		DOCKET NUMBER:  AR20110003999 


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, the narrative reason listed on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed to reflect retirement.

2.  The applicant states, in effect, the Army was offering an early retirement at the time of separation processing and he requested to apply.  His request was denied due to lack of qualification because he did not meet body fat standards.

3.  The applicant provides no evidence to support his request.

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, and 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 3 January 1980.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 31C (Single Channel Radio Operator).  The highest rank attained while serving on active duty was staff sergeant (SSG)/E-6.

3.  The applicant's record shows a history of noncompliance with the weight control standards of Army Regulation 600-9 (The Army Weight Control Program (AWCP)).  He exceeded his maximum allowable weight and body fat on the following occasions:

* 28 November 1984, 3 pounds overweight
* 3 June 1985, 8 pounds overweight
* 16 August 1985, 1 pound overweight
* 18 July 1986, 21 pounds overweight

4.  Records show the applicant was placed on the AWCP, and he was administratively removed from the program when he met the Army's height and weight standards.

5.  On 16 April 1990, the applicant underwent a unit weigh-in and was determined not to be in compliance with weight control standards of the AWCP.  He exceeded his maximum allowable weight by 52 pounds.  He also measured at 23.41 percent body fat while his maximum authorized body fat was
22 percent.

6.  Subsequent to this weigh-in, the applicant was referred for a medical review by his commander.  The applicant was examined and found to be fit for participation in the AWCP.  A medical official determined the he was not overweight due to a medical condition.  Accordingly, he was enrolled in the AWCP.

7.  On 19 April 1990, the applicant received a counseling statement informing him that he had 90 days to comply with the weight and body standards of Army Regulation 600-9 or he would be processed for separation from the United States Army.  He signed the counseling statement acknowledging that he understood.

8.  During the months of May through July 1990, he underwent monthly weigh-ins at the unit, but at each weigh-in he was again determined to have exceeded body fat standards.

9.  On 23 July 1990, his immediate commander notified him of his intent to initiate separation action against him in accordance with chapter 5 of Army Regulation 635-200 (Personnel Separations) by reason of failure to meet the Army weight/body fat standards of Army Regulation 600-9.

10.  On 27 July 1990, the applicant was given a mental health evaluation and was found competent to participate in the separation process.

11.  On 27 July 1990, the applicant acknowledged receipt of the separation memorandum.  He consulted with legal counsel and was advised of the basis for the contemplated separation action and its effect, of the rights available to him and the effect of any action taken by him in waiving his rights, and the type of discharge and its effect on further enlistment or reenlistment.  The applicant waived all his rights. 

12.  On 27 April 1990, his immediate commander initiated a separation action against him in accordance with paragraph 5-15 of Army Regulation 635-200 for failure to meet the Army weight/body fat standards of Army Regulation 600-9.  His battalion commander concurred and approved the separation on 1 August 1990.  The battalion commander directed the issuance of an honorable discharge.

13.  On 24 August 1990, the applicant was issued a DD Form 214 (Certificate of Release or Discharge for Active Duty) granting him an honorable discharge under the provisions of Army Regulation 635-200, Chapter 5.  

14.  Army Regulation 600-9 states commanders and supervisors will implement the AWCP.  Overweight is defined as when a Soldier's percent of body fat exceeds the standard specified in the regulation.  Body fat composition will be determined for personnel whose body weight exceeds the screening table weight.  A medical evaluation will be accomplished when requested by the unit commander or when the Soldier is being considered for separation due to failure to make satisfactory progress in a weight control program.  If health care personnel discover no underlying or associated disease process as the cause of the condition and the individual is classified as overweight, these facts will be documented.

15.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.  Paragraph 5-15, in effect at the time, provided the policy for separating members who failed to meet the Army body composition/weight control standards if this condition was the only reason for separation and there was no underlying medical condition which precluded them from participating in the AWCP.  Members separated under this provision of the regulation received an honorable discharge.

16.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The regulation in effect at the time of the applicant's separation stipulated that the SPD code of "JFV" was the appropriate code to assign Soldiers separated under the provisions of chapter 5, Army Regulation 635-200, by reason of failure to meet Army composition and weight control standards.

17.  There is no evidence in the applicant's personnel service record which show he requested an early retirement nor did he provide any documentation to show he sought an early retirement and he was refused.

18.  Section 4403 of the National Defense Authorization Act (NDAA) for Fiscal year 1993 (FY93) provided the Secretary of Defense a temporary additional force management tool with which to effect the drawdown of military forces through 1999.  During the initial active force drawdown period (23 October 1992 and ending on 1 October 1999), the Secretary of the Army could authorize an enlisted member with at least 15 but less than 20 years of creditable service a length of service retirement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that the narrative reason listed on his DD Form 214 be changed to reflect retirement was carefully considered; however, there is insufficient evidence to grant the requested relief.  The applicant has not shown error, injustice, or inequity for the relief he requests. 

2.  The evidence of record shows the applicant underwent a unit weigh-in and he exceeded both the Army weight standards and Army body fat standards.  Subsequent to this weigh-in, the applicant was examined and found to be fit for participation in the AWCP.  

3.  A medical official determined he was not overweight due to a medical condition.  The underlying reason for his release from active duty was his failure to meet weight standards.  

4.  There is no evidence of record and the applicant has not provided any evidence which shows he applied for early retirement and he was refused by his chain of command.  Furthermore, the early retirement provision did not exist in 1990.  Therefore, regularity must be presumed in this case.



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)                                         AR20110003999



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ABCMR Record of Proceedings (cont)                                         AR20110003999



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