IN THE CASE OF:	  

		BOARD DATE:  14 June 2012

		DOCKET NUMBER:  AR20110019706 


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 discharge to honorable.

2.  The applicant states his unit was determined that he would leave the military with a less than favorable standing due to being overweight.

3.  The applicant provides no additional evidence.

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 enlisted in the Regular Army on 4 June 1996 and successfully completed basic and advanced individual training and was awarded military occupational specialty (MOS) 13F (Fire Support Specialist).  He was later awarded MOS 95B (Military Policeman).  On 1 September 2001, the applicant was promoted to the rank and grade of sergeant/E-5.

3.  The applicant's service records show he failed the Army Physical Fitness Tests (APFT) on 11 November 2001 and 9 January 2002.  On 9 January 2002, he was placed in the Army Weight Control Program.

4.  The applicant's record reveals general counseling statements on the following dates:

* on 11 January 2002, for failing to maintain the Army's body fat standards and failure to pass a diagnostic APFT
* on 8 May 2002, for failing to make satisfactory progress in the Army Weight Control Program
* on 14 May 2002, for being removed from the Army Weight Control Program

5.  On 15 May 2002, the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for failing to report to higher authorities that a fellow Soldier released a Soldier without properly being cited for driving under the influence (DUI) and failing to counsel the fellow Soldier for releasing a Soldier without citing a Soldier for DUI.

6.  On 18 May 2002, the applicant's commander initiated an elimination packet and a waiver of rehabilitative transfer for the applicant's separation under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 13, for unsatisfactory performance.  The reason cited by the commander was the applicant's failure of two consecutive APFT's, failure to make progress in the Army Weight Control Program, and receipt of an Article 15.

7.  On 18 May 2002, he was advised by consulting counsel of the basis for the contemplated separation action.  The applicant was advised of the impact of the discharge action.  The applicant signed a statement indicating he was advised he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 13.  The applicant requested counsel and elected not to submit a statement on his own behalf.

8.  On 17 June 2002, the appropriate authority approved the elimination packet and waiver of the rehabilitative transfer recommendation and directed that the applicant receive a general discharge under honorable conditions under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.

9.  On 16 July 2002, the applicant was discharged after completing 6 years, 1 month, and 13 days of creditable active service in the rank and grade of specialist/E-4.  Item 28 (Narrative and Reason for Separation) of his DD Form 214 shows the entry "UNSATISFACTORY PERFORMANCE."

10.  Army Regulation 635-200 provides the policy and sets forth the procedure for administrative separation of enlisted personnel.  Chapter 13 provides for the separation of a Soldier when it is determined that he/she is unqualified for further military service because of unsatisfactory performance.  Paragraph 13-2e states that initiation of separation proceedings is required for Soldiers without medical limitation who have two consecutive failures of the APFT.  The service of Soldiers separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military records.

11.  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 applicant's request for an upgrade of his discharge was carefully considered.

2.  The applicant's records show he was discharged for failing to pass two consecutive APFT's under the provisions of Army Regulation 635-200, chapter 13.  By regulation, this mandated the applicant's separation for unsatisfactory performance.

3.  His administrative separation was accomplished in accordance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.

4.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and his rights were fully protected throughout the separation process.

5.  In view of the foregoing, there is no basis for granting the applicant's 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 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)                                         AR20110019706



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ABCMR Record of Proceedings (cont)                                         AR20110019706



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