BOARD DATE:	  11 July 2013

		DOCKET NUMBER:  AR20120020747 


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) to show his status in the U.S. Army Reserve (USAR) Individual Ready Reserve (IRR) from 8 September 2002 through 13 February 2005, in effect:

* item 6 (Reserve Obligation Termination Date) to show "2005  02  13"
* item 9 (Command to Which Transferred) to show he was transferred to the USAR IRR

2.  The applicant states his DD Form 214 is incorrect because his commander directed his placement in the IRR upon his discharge from active duty.  His DD Form 214 does not contain a Reserve obligation termination date or show he was transferred to the USAR IRR.

3.  The applicant provides:

* DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) with annexes A, B, and C, dated 14 February 1997
* memorandum, Headquarters, Garrison Command, Fort Bliss, TX, dated 22 July 2002, subject:  Proposed Separation Under Army Regulation 
635-200 (Active Duty Enlisted Administrative Separations), Chapter 18 (Failure to Meet Body Composition/Weight Standards)
* DD Form 214
* Orders A-07-115210, U.S. Army Human Resources Command, dated 15 July 2011
* excerpt from Army Regulation 635-200

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 USAR Delayed Entry Program (DEP) for a period of 8 years on 14 February 1997 with enlistment in the Regular Army for a period of 4 years no later than 2 October 1997.  He was discharged from the USAR DEP and enlisted in the Regular Army for a period of 4 years on 6 October 1997. 
On 5 July 2001, he reenlisted for a period of 3 years.  He held military occupational specialty 02B (Cornet or Trumpet Player) and attained the rank/grade of specialist/E-4.

3.  His records show he was enrolled in the Army Weight Control Program and remedial physical training.  He was also evaluated by medical officials at the request of his command and received nutritional counseling.  The medical officials indicated that his weight was not a result of an underlying medical condition.

4.  On 23 October 2001, his commander initiated a DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)) based on his enrollment in the Army Weight Control Program.

5.  His records show he received a DA Form 4856 (Development Counseling Form) on 19 September 2001 for failing a diagnostic Army Physical Fitness Test on 5 September 2001.  He received counseling statements on multiple dates between September 2001 and June 2002 for failing to meet Army height and weight standards, to include body fat allowance.

6.  On 9 July 2002, his commander notified him of his intent to initiate separation action against him for failure to meet body composition/weight standards in accordance with Army Regulation 635-200, chapter 18, and informed him of his rights.  His commander also informed him he was recommending an honorable discharge.  He acknowledged receipt of this notification the same day.

7.  On 9 July 2002, he consulted with counsel on the basis of his proposed separation and counsel advised him of his rights.  He chose not to submit statements in his own behalf and waived his right to representation by counsel.

8.  On 9 July 2002, his commander officially initiated separation action against him in accordance with Army Regulation 635-200, chapter 18, and recommended the issuance of an honorable discharge certificate and transfer to the IRR for completion of his remaining service obligation.

9.  On 22 July 2002, the separation authority directed his discharge in accordance with Army Regulation 635-200, chapter 18; receipt of an Honorable Discharge Certificate; and transfer to the IRR.

10.  On 7 September 2002, he was honorably discharged for weight control failure in accordance with Army Regulation 635-200, chapter 18.  His DD Form 214 shows he completed 4 years, 11 months, and 2 days of net active service.  This form also shows in:

* item 6 – the entry "0000  00  00"
* item 9 – the entry "NA"
* item 18 (Remarks) – no entries referring to service in the DEP
* item 23 (Type of Separation) – the entry "DISCHARGE"

11.  Army Regulation 635-200, paragraph 1-35, states Soldiers with a remaining military service obligation (MSO) may be transferred to the IRR upon release from active duty if they have completed initial entry training and have been awarded a military occupational specialty, have 3 or more months remaining on their MSO, are assigned a characterization of service of honorable or under honorable conditions (general), or have service described as uncharacterized if in entry-level status and are determined by the separation authority to possess the potential for useful service if ordered to active duty under conditions of full mobilization.

12.  Army Regulation 635-200, paragraph 1-36, states that except in cases where the Soldier has no remaining MSO or where discharge is required, the separation authority must determine whether the Soldier possesses the potential to perform useful service to meet mobilization requirements if ordered to active duty.  The decision to order discharge or transfer to the IRR rests with the separation authority and cannot be delegated.  The separation authority's determination will be made on a case-by-case basis.

13.  Army Regulation 635-200, chapter 18, states Soldiers who fail to meet the body fat standards set forth in Army Regulation 600-9 (The Army Weight Control Program) are subject to involuntary separation per this chapter when such condition is the sole basis for separation.  The provisions of chapter 1, section VII, will govern whether the Soldier will be released from active duty with transfer to IRR or be discharged.  

14.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.

	a.  Item 6 of the DD Form 214 is for the completion date of the statutory MSO incurred by a Soldier on initial enlistment or appointment in the Armed Forces.  Department of Defense policy requires a Soldier with no previous military service who enlisted or was appointed on or after 1 June 1984 to serve a period of 8 years.  The MSO starts on the date of initial enlistment or appointment in the Regular Army, Army National Guard, or USAR (to include the DEP).  DEP time is credited in computing this date.  For a Soldier discharged, dismissed, or dropped from the Army rolls, or with an expired MSO, enter "00  00  00."  Soldiers within 90 days of their MSO termination date at separation are considered to have completed their MSO.

	b.  The entry in item 9 of the DD Form 214 is for the applicable location or command to which the Soldier will be transferred.  This entry is dependent on the Soldier's status on transition.  For entry determinations see Table 2-1.

		(1)  Table 2-1 states item 9 of the DD Form 214 for Soldiers released from active duty with a remaining statutory service or contractual obligation that are transferred or returned to the USAR with no specific troop program unit assignment will contain the entry "USAR CONTROL GROUP (Annual Training or Reinforcement, as appropriate) AR-PERSCOM, 1 RESERVE WAY, ST. LOUIS, MO  63132-5200."

		(2)  Table 2-1 states Soldiers discharged from active duty will have no further military status.  Item 9 of the DD Form 214 will contain the entry "NA."

	c.  An entry is required in item 18 of the DD Form 214 for a Soldier who has DEP time.  Enter "BLOCK 6 – PERIOD OF DEP (inclusive periods of DEP time)."


DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant enlisted in the USAR DEP on 14 February 1997 and was discharged on 5 October 1997 for enlistment in the Regular Army on 6 October 1997.  He served on active duty in the Regular Army from 6 October 1997 until he was honorably separated for weight control failure on 7 September 2002.

2.  The separation authority directed his honorable discharge and transfer to the IRR to complete his remaining service obligation.  However, once a Soldier is discharged, he or she is no longer affiliated with the military and therefore has no remaining service obligation.  The separation authority had the ability to direct separation and transfer him to the IRR or to discharge him, but not the authority to discharge and transfer him to the IRR.

3.  The applicant was separated for failing to meet weight control standards, not because he committed a punishable offense.  Since the Army created the administrative error in his records and the separation authority intended him to be transferred to the IRR, his DD Form 214 should be corrected to show:

* item 6 – the entry "2005  02  13"
* item 9 – the entry "USAR CONTROL GROUP (REINFORCEMENT) 
AR-PERSCOM, 1 RESERVE WAY, ST. LOUIS, MO  63132-5200"
* item 18 – the entry "BLOCK 6 – PERIOD OF DEP 19970214-19971005"
* item 23 – the entry "RELEASE FROM ACTIVE DUTY"

BOARD VOTE:

__X____  ____X____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 as follows:

* deleting the current entry from item 6 and replacing it with the entry "2005  02  13"
* deleting the current entry from item 9 and replacing it with the entry "USAR CONTROL GROUP (REINFORCEMENT) AR-PERSCOM, 1 RESERVE WAY, ST. LOUIS, MO  63132-5200"
* deleting the current entry from item 23 and replacing it with the entry "RELEASE FROM ACTIVE DUTY"
* adding the following entry to item 18:  "BLOCK 6 – PERIOD OF DEP 19970214-19971005"



      ___________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)                                         AR20120020747



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ABCMR Record of Proceedings (cont)                                         AR20120020747



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