IN THE CASE OF:	  

		BOARD DATE:	  18 April 2012

		DOCKET NUMBER:  AR20110019174 


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 her previous request to correct her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show her rank/grade as specialist four (SP4)/E-4.

2.  As a new issue, the applicant requests correction of her records to lift an existing bar to reenlistment.

3.  The applicant states her pay grade is E-4.  She received nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) on 16 May 1979, which was later cleared on 17 July 1979.  The other Article 15 she received was abusive.

4.  She also states, in effect, that it is illegal to bar someone from reenlistment on the basis of a medical condition.  Further, her DA Form 3349 (Medical Condition-Physical Profile Record) shows in section C, block 11 that she had a medical condition.

5.  The applicant provides:

* Letter from the National Personnel Records Center (NPRC), dated 
25 August 2011
* Letter to the NPRC, dated 12 August 2011
* Service Request All Details report from NPRC, dated 23 August 2011
* Military Personnel Records Jacket (201 file)

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.  With respect to the reconsideration of her rank/grade issue:

	a.  Army Regulation 15-185 sets forth procedures for processing requests for correction of military records.  Paragraph 2-15b governs requests for reconsideration.  This provision of the regulation allows an applicant to request reconsideration of an earlier ABCMR decision if the request is received within
1 year of the ABCMR's original decision and it has not previously been reconsidered;

	b.  the ABCMR records show the applicant initially requested restoration to pay grade E-4 and her request was acted upon in ABCMR Docket Number
AC94-06412, on 27 July 1994.  Records show she submitted a second application wherein she requested that her DD Form 214 be corrected to show she was discharged in the pay grade of E-4.  Her second request was acted upon in ABCMR Docket Number AR20040001974, on 15 February 2005.  Records show she requested reconsideration of her second request, which was acted upon in ABCMR Docket Number AR20050008816, on 16 March 2006; and

	c.  she was advised that the ABCMR will not consider any future requests for reconsideration of this matter without new evidence.  Therefore, the issue of her rank/grade will not be discussed further in the Record of Proceedings.

3.  The applicant enlisted in the Regular Army on 16 January 1976.  She completed training and she was awarded military occupational specialty 36C (Wire Systems Installer/Operator).  The highest rank/grade she attained while serving on active duty was SP4/E-4.


4.  Her DA Form 2-1 (Personnel Qualification Record) shows she was assigned to A Company, 142nd Signal Battalion, 2nd Armored Division, Fort Hood, TX, from 18 June 1976 to 17 January 1980.

5.  Her record contains three Standard Forms (SF) 513 dated between 1 June 1977 and 13 November 1979.  These forms show she was diagnosed with being overweight in accordance with Army Regulation 600-9 (The Army Weight Control Program) and she was put on a diet to restrict her caloric intake.

6.  Her record contains an SF 600 (Chronological Record of Medical Care), dated 18 April 1978.  This form shows she was referred to the nutrition clinic where she received written and verbal instructions on an 1,800 calorie diet and told she must weigh in every 2 weeks.

7.  Her record contains a DA Form 3349, dated 26 June 1978, that shows in:

* Item 6, she was administratively overweight in accordance with Army Regulation 600-9 and she exceeded the Army weight standard by
6 pounds
* Item 8, she did not meet the standards for reenlistment in accordance with Army Regulation 600-9 and that the DA Form 3349 was being used "for administrative monitoring purposes only and [did] not indicate a medical condition [or] disability"
* Item 11, her condition was temporary and it was not expected to exceed 90 days, and further states the limitations noted (of which there were none) would automatically be canceled on 15 July 1978

8.  Her record contains an undated DA Form 4126-R (Bar to Reenlistment Certificate) wherein her commander stated she had "been enrolled in the weight control program since 20 June 1977 [and had] not lost the required weight to meet the standards of Army Regulation 600-9."  He further stated she was currently 8 pounds overweight.

9.  Her record contains a memorandum, subject:  "Bar to Reenlistment Certificate."  The date on this form is illegible.  This memorandum essentially states she had been barred from reenlistment and that a recommendation to void the bar could be submitted at any time by her unit commander if he felt she had proven to be worthy of reenlistment.

10.  The memorandum further stated the bar would be initially reviewed by the unit commander 6 months after the date it was approved or 30 days prior to her scheduled departure from the unit or date of separation.  If as a result of the review the commander felt the bar to reenlistment should be removed or remain in force he would initiate a recommendation to that effect.

11.  Her records contain a DA Form 2496 (Disposition Form), dated 6 August 1979, subject:  "Bar to remain in effect."  Her commander stated on this form that he had reviewed the bar to reenlistment and recommended that it remain in effect.  He provided the following reasons for his recommendation:

* She was currently 10 pounds overweight 
* She was fully capable of getting down to the prescribed weight
* Since initial enrollment she has displayed total apathy toward the program

12.  Her DD Form 214 shows she was honorably discharged from active duty on 17 January 1980, in the rank/grade of private first class (PFC)/E-3 after completing 4 years of net active service with 3 days of time lost.  This form further shows:

* The separation authority was Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 2 
* The narrative reason for separation was completion of required service
* She received a separation code of "JBK"
* She received a reenlistment code (RE) of "RE-3B"

13.  Army Regulation 601-280 (Army Reenlistment Program), in effect at the time, prescribed the eligibility criteria and options available in the Army Reenlistment Program.  Chapter 3, paragraph 2-21.1 provided for the barring from reenlistment of individuals who did not meet the weight control criteria set forth in Army Regulation 600-9.  RE-3B was applied to those individuals who had time lost during their last period of service.  These individuals were ineligible for enlistment unless a waiver was granted.

14.  Army Regulation 600-9, in effect at the time, specified that personnel who exceeded the screening table weight and the body fat standard for their current age group would not be allowed to reenlist or extend their enlistment.  

15.  Army Regulation 635-200 (Personnel Separations - Enlisted Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 2 established policy and prescribed procedures for separating personnel who had completed the period of service for which enlisted, inducted, or ordered to active duty.  


16.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), in effect at the time, specified that the SPD code of "JBK" was appropriate for the involuntary discharge of enlisted personnel when the narrative reason for separation was "Completion of required service" under Army Regulation
635-200, chapter 2.

DISCUSSION AND CONCLUSIONS:

1.  The applicant argues, in effect, that her bar to reenlistment should be lifted because it is illegal to bar someone from reenlistment on the basis of a medical condition and that the DA Form 3349 in her records shows she had a medical condition.

2.  The DA Form 3349 in her records specifically states she was administratively overweight, she did not meet the standards for reenlistment in accordance with Army Regulations, and the DA Form 3349 was used only for administrative monitoring purposes and did not indicate she had a medical condition or disability.

3.  Evidence shows she was on the weight control program for over 2 years and that she received counseling on weight management and diet.  She was given numerous opportunities to make progress, but failed to do so.  As a result, she was barred from reenlistment.

4.  The governing Army regulation in effect at the time provided for the barring from reenlistment of individuals who did not meet the Army weight standard.  Therefore, her commander was acting in accordance with Army regulations when he barred her from reenlistment.

5.  The record does not show and she has not provided evidence showing she had a medical condition that caused her to gain weight or prevented her from losing weight.  Therefore, she is not entitled to the 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)                                         AR20110019174



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ABCMR Record of Proceedings (cont)                                         AR20110019174



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