IN THE CASE OF:	  

		BOARD DATE:	  12 January 2012 

		DOCKET NUMBER:  AR20110011896 


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 reconsideration of an earlier request to upgrade his general discharge to honorable.

2.  The applicant states, in effect:

   a.  the corrective action for the December 1980 AWOL period was to be suspended from his records upon completion of the required additional duties.  At the end of the time period, his rank and monetary penalties were returned in full and the record of such actions was to be removed.  The DA Form 3072 (Waiver of Disqualification for Enlistment/Reenlistment in the Regular Army for In-Service Personnel) he provided shows he performed in an exemplary manner and he received two Army Achievement Medals, certificates of achievement, and letters of commendation.

	b.  His weight problems began in Germany.  Prior to being assigned to Germany he had been in a unit that had a regular physical training (PT) program which helped with weight issues.  Without an active program maintaining the standard required was difficult.  A large portion of the company was on or had been on the overweight program.

	c.  His original proceedings stated he was able and fit to participate in the weight control/exercise program.  This is a fallacy.  There was no exercise program available to participate in.  He was physically fit to participate had a program been available.

	d.  As for the statement that being overweight was not due to medical reasons, it has been found that the stomach condition he had while in the Army is directly related to weight gain.  His stomach condition is a hiatal hernia, gastroesophageal reflux disease, which has led to granulomas on the larynx.  These granulomas have been surgically removed on several occasions. 

	e.  His original proceedings also stated he requested release from his military obligation.  This is true due to the updated military standards that he felt he could not reach or achieve in the unit in which he was assigned.  Per Army Regulation 600-9 (The Army Weight Control Program) his weight requirement was
189 pounds at 71 inches up until the new requirement of 175 pounds.  This was an unrealistic expectation to achieve.  Neither ample time nor an exercise program was in place to expect this amount of weight loss.

	f.  his general discharge for unsatisfactory performance is directly related to the lack of PT and medical reasons.
 
3.  The applicant provides:

* DA Form 3072
* Service personnel records
* Certificates of Achievement
* Two Army Achievement Medal award certificates
* Weight control program reports
* Record of informal counseling session
* DD Form 214 (Certificate of Release or Discharge from Active Duty) 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100025142, on 5 April 2011.

2.  The applicant’s contentions and documentation are new evidence that will be considered by the Board.

3.  The applicant enlisted in the Regular Army on 15 January 1980 for a period of 4 years.  He completed his training and was awarded military occupational specialty 44B (Metal Worker).  



4.  A DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 
6 December 1980, shows nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 1 December to 
5 December 1980.  His punishment consisted of a reduction to E-1, correctional custody for 30 days, and a forfeiture of $250 pay for 2 months.  On 4 February 1981, the reduction to E-1 was set aside and all rights, privileges, and property affected were restored.    

5.  He executed a 13-month extension on 4 March 1982 and attained the rank/grade of sergeant/E-5.  He served in Germany from 27 January 1982 to 29 February 1984.  

6.  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.  He was previously enrolled in the weight control program but he met the standards on 16 August 1983.

7.  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. 

8.  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.

9.  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.   

10.  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.

11.  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.

12.  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.  

13.  On 15 February 1984, the separation authority approved his 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.  He had completed a total of 4 years, 1 month, and 13 days of creditable military service with 4 days of lost time.

14.  His DD Form 214 shows 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.

15.  There is no evidence which shows he had a medical condition prior to his discharge.

16.  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.

17.  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.

18.   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.

19.  Army Regulation 600-8-104 (Military Personnel Information Management/Records) prescribes the policies governing the Official Military Personnel File (OMPF), the Military Personnel Records Jacket, the Career Management Individual file, and Army Personnel Qualification Records.  Table 
2-1 of the regulation states that a DA Form 2627 issued before 1 November 1982 showing any other type punishment than extra duty or restriction for 14 days of less, an oral or written reprimand, forfeiture of pay for one month, or any combination of the above, will be filed in the Commendatory and Disciplinary section of the OMPF. 

DISCUSSION AND CONCLUSIONS:

1.  He contends the 1980 DA Form 2627 was to be removed from his records upon completion of the required additional duties.  However, because the correctional custody and forfeiture of pay for 2 months was not set aside, this 
DA Form 2627 is properly filed in his military records in accordance with the governing regulation.  

2.  He contends there was no exercise program available to participate in.  However, there is no evidence and he provided no evidence to support this contention.      

3.  He contends he was overweight due to medical reasons.  However, there is no evidence and he provided no evidence which shows he had a medical condition prior to discharge.

4.  He was given 6 months to lose 21 pounds.  Yet he requested discharge less than 2 weeks later.  He did not give his unit a chance to set up a program for him.

5.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns; however, he failed to do so.

6.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.
7.  Based on his failure to meet Army standards, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, his record of service is insufficiently meritorious to warrant 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 to amend the decision of the ABCMR set forth in Docket Number AR20100025142, dated 5 April 2011.




      __________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)                                         AR20110011896



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ABCMR Record of Proceedings (cont)                                         AR20110011896



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