IN THE CASE OF:
BOARD DATE: 3 April 2012
DOCKET NUMBER: AR20110018987
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, change of the narrative reason for his discharge from Weight Control Failure to Physical Disability, Not a Disability Involuntary.
2. The applicant states he has been unable to obtain benefits for his Army service because he did not serve for more than 2 years. He goes on to state he was discharged due to weight control failure and that he has checked it out and found that he should be able to receive benefits for that reason. He concludes by stating he desires to use his benefits such as a Department of Veterans Affairs (VA) hospital stay and to get a VA home loan.
3. The applicant provides a copy of his DD Form 214.
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 applicants 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 applicants 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 in Denver, CO on 24 August 1995 for a period of 4 years and training as an infantryman. He was transferred to Fort Benning, GA for his one-station unit training (OSUT) as a fighting vehicle infantryman. He completed his training and he was transferred to Fort Stewart, GA on 29 December 1995.
3. The applicant was placed on the overweight program in March 1996 and he remained on the overweight program for the remainder of his service with no improvement.
4. On 7 October 1996, the applicants commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 18, due to weight control failure. He cited as the basis for his recommendation the applicants failure to respond to repeated counseling and failure to make progress in the weight control program for over 6 months.
5. After consulting with legal counsel, the applicant elected not to make a statement in his own behalf.
6. On 15 October 1996, the separation authority approved the applicant's recommendation for discharge under the provisions of Army Regulation 635-200, chapter 18, with issuance of an Honorable Discharge Certificate.
7. Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. Chapter 18 establishes policy and procedures for separating personnel who fail to meet the body fat composition/
weight control standards set forth in Army Regulation 600-9 (The Army Weight Control Program). It provides that action will be taken to separate a member when it is clearly established that the Soldier has not been diagnosed by health care personnel as having a medical condition which precludes them from meeting the standards of Army Regulation 600-9 and despite attempts to reduce weight or body fact composition the Soldier has failed to meet the goals.
DISCUSSION AND CONCLUSIONS:
1. The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would
tend to jeopardize his rights. Accordingly, the characterization and the narrative reason for separation were appropriate for the circumstances of his case.
2. The applicant's contentions have been noted; however, they are not sufficiently mitigating when compared to the evidence of record regarding the nature of his discharge. There is no evidence to suggest that he should have been discharged for medical reasons.
3. The ABCMR does not grant requests for changes in the narrative reason for separation solely for the purpose of making the applicant eligible for veterans or medical benefits. Every case is individually decided based upon its own merits. Additionally, the granting of veteran's benefits is not within the purview of the ABCMR. Therefore, any questions regarding eligibility for health care and other benefits should be addressed to the DVA.
4. In view of the foregoing, there is no basis for granting the applicants requested relief.
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) AR20110018987
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ABCMR Record of Proceedings (cont) AR20110018987
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