IN THE CASE OF:	  

		BOARD DATE:  6 November 2012

		DOCKET NUMBER:  AR20120006468 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 23 December 1983 by:

* changing the narrative reason for separation
* adding the Cold War Recognition Certificate 

2.  The applicant states there was no error on his DD Form 214; however, during a job interview he was asked if he had a weight problem.  The employer was concerned whether he would be able to perform his duties as a warehouse worker.  

3.  The applicant provides his Cold War Recognition Certificate.

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.  He enlisted in the Regular Army on 11 June 1981.  

3.  He accepted nonjudicial punishment (NJP) on:

* 26 October 1981 for disrespect to a noncommissioned officer
* 29 July 1983 for failure to go at the time prescribed to his appointed place of duty

4.  On 20 March 1983, he was formally counseled that he was identified as being overweight and was being referred to a physician for evaluation to determine whether he was obese, overweight, or if there were any medical reasons why he should not participate in a weight control program.  He was also notified that if weight loss goals established by a physician were not met within 6 months he could be barred from reenlistment for apathy.

5.  On 30 March 1983, he was enrolled in the weight control program.

	a.  His official height was 69 1/4 inches and he weighed 221 pounds.

	b.  No medical reasons were found to prevent him from participating in a program that includes a diet and exercise.

	c.  Total weight loss goal was 35 pounds and he was allowed 35 weeks to reach the goal.

   d.  He was formally counseled that if he did not meet weight loss goals established by the physician within 6 months he could be:

* barred from reenlistment for apathy
* eliminated from the service

6.  On 6 May 1983, he was formally counseled that he had not made satisfactory progress in the weight control program.  He had gained 1 pound since his last weigh-in.  Continued unsatisfactory progress would cause his failure in the program and appropriate administrative action would be taken.

7.  On 30 June 1983, he was examined and found to weigh 210 pounds and have a body fat content of 24.8 percent.  He was 20 years of age.  He exceeded the percent body fat standard by 4.8 percent.  His maximum allowable weight was 196 pounds in his age category.

8.  His weight control progress record shows the following weigh-in dates and his weight:

* 30 March - 221 pounds
* 6 April - 219 pounds
* 6 May - 220 pounds
* 23 May - 213 pounds
* 8 June - 213 pounds
* 12 October - 212 pounds

9.  His commander notified him he was initiating action to discharge him by reason of inability to lose the necessary weight to meet the Army weight table.  He had been given ample opportunity to lose the necessary weight and he had failed to do so.  He had also received an NJP.

10.  The commander advised him of his right to:

* be represented by counsel
* submit statements in his own behalf
* review documents to be presented to the separation authority
* waive any of these rights
* withdraw any waiver of rights at any time prior to the date the discharge     authority directs or approves his discharge

11.  On 5 December 1983, he declined the opportunity to see legal counsel and waived his right to see legal counsel.  He declined to make an election of his rights.

12.  The appropriate authority approved his separation under the provisions of chapter 13 of Army Regulation 635-200 (Enlisted Separations).

13.  On 23 December 1983, he was released from active duty by reason of failure to meet body fat standards under the provisions of chapter 13 of Army Regulation 635-200.  He completed 2 years, 6 months, and 13 days of active service that was characterized as honorable.  

14.  There is no indication he applied to the Army Discharge Review Board (ADRB) to change the reason for his discharge within the ADRB's 15-year statute of limitations.



15.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.

   a.  Paragraph 2-2 stated if the member refused to consult with counsel and declined to respond as to the waiver of rights, such declination constituted a waiver of rights.
   
   b.  Paragraph 13-2 stated commanders would separate a member for  unsatisfactory performance when it was clearly established that the individual was unqualified for further military service.  One of these disqualifications listed in paragraph 13-2a(2) was failure to meet body fat standard after application of the procedures in Army Regulation 600-9.
   
16.  Army Regulation 600-9 (The Army Weight Control Program) (AWCP), then in effect, established policies and procedures for the implementation of the Army Weight Control Program. 

	a.  Commanders and supervisors implemented the AWCP.  Overweight was defined as when a Soldier's percent of body fat exceeded the standard specified in the regulation.  Body fat composition was determined for personnel whose body weight exceeded the screening table weight.  A medical evaluation was accomplished when requested by the unit commander or when the Soldier was being considered for separation due to failure to make satisfactory progress in a weight control program.  If health care personnel discovered no underlying or associated disease process as the cause of the condition and the individual was classified as overweight, these facts were documented.

	b.  Maximum allowable percent body fat standards were as follows:


Age Group

17-20
21-27
28-39
40 & Older
Male (% body fat)
20
22
24
26
	c.  During the first 6 months after the effective date of this regulation, personnel of all ages must have met either the screening table weight for age 40 and over, or the body fat standard for age 40 and over, to reenlist or extend their enlistment, if otherwise eligible.

   d.  Beginning 6 months from  the effective date of this regulation, personnel who exceeded the screening table weight and the body fat standard for their current age group were not allowed to reenlist or extend their enlistment.

17.  Award of the Cold War Recognition Certificate is not governed by the provisions of Army Regulation 600-8-22 (Military Awards).   As a result, it is not shown on a discharge document.  

DISCUSSION AND CONCLUSIONS:

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

2.  When he enrolled in the AWCP he was 69 1/4 inches tall and he weighed 
221 pounds.  His body fat standard was 20 percent and his maximum allowable weight was 196 pounds in his age category.  Throughout his enrollment in the AWCP his weight was never below 212 pounds.  A medical official determined he was not overweight due to a medical condition.  Therefore, he was clearly not in compliance with the standards of the AWCP.

3.  He was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  He waived his right to see legal counsel and declined to make an election of his rights.  Therefore, such a declination constituted a waiver of his rights.  The records contain no indication of procedural or other errors that would have jeopardized his rights.

4.  Because the award of the Cold War Recognition Certificate is not governed by the provisions of Army Regulation 600-8-22 it is not shown on the DD Form 214.    
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)                                         AR20120006468



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ABCMR Record of Proceedings (cont)                                         AR20120006468



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