BOARD DATE:	4 March 2014  

		DOCKET NUMBER:  AR20130011255 


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 his previous request for correction of his military records to show he completed 20 qualifying years of service for a Reserve Component retirement in the rank of sergeant first class.

2.  The applicant states:

   a.  He was denied entry into an active reserve unit in order to obtain assistance to meet the requirements of Army Regulation (AR) 600-9 (Army Weight Control Program) upon his return to the Continental United States (CONUS) from Germany in 1986.  At the time, his enlistment contract was valid until on or about 9 September 1988.  His enlistment contract agreement was violated.  This violates AR 690-12 (Army Equal Employment Opportunity and Affirmative Action Program), AR 690-600 (Equal Employment Opportunity Discrimination Complaints), as well as Department of Defense Instruction 1308-1 (Physical Fitness and Body Fat Program).

   b.  He suffered from post-traumatic stress disorder (PTSD) syndrome when he sustained severe injuries to his upper and lower back, shoulders, and legs multiple times while attempting to be in compliance with AR 600-9.  The injuries were sustained while performing on duty strenuous work, participating in military sports (contact football in 1974 to 1975), and performing Army physical fitness exercises while on and off duty from 1973 to 1989, in CONUS and overseas, respectively.

   c.  The Review Board stated that a DA Form 4856 (General Counseling Form), dated 15 May 1983, stated he was counseled for being overweight.  Leadership did not interact with him orally and/or in writing about his adverse performance.  In addition, leadership did not give him a signed copy of the alleged DA Form 4856 per Field Manual 6-22 (Army Leadership).  Leadership actions also violated the aforementioned ARs and did not render him assistance per AR 600-9, paragraphs 2-14, 2-15, and 2-16.

   d.  He has suffered a grievous wrong.  He lacks knowledge of the applicable ARs.  He should have been grandfathered and/or medically retired from the U.S. Army Reserve (USAR).  He suffered severe stress and anguish.  He sought medical attention from a civilian chiropractor from 1986 to 1989.  This doctor informed him in 2013 that his chiropractor records were destroyed when the doctor relocated his practice.  He strongly feels that if he was afforded enrollment into the Army Weight Control Program he would have retired from the USAR and could have achieved the rank of sergeant major or a commissioned warrant officer.

3.  The applicant provides copies of the previous Record of Proceedings and a 2013 Chronological Statement of Retirement Points.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2012006612 on 6 November 2012.

2.  The applicant stated he was suffering from PTSD at the time and should have been medically retired.  This is a new argument and will be considered by the Board.

3.  The applicant enlisted in the Regular Army on 30 May 1973.  He was released from active duty on 20 May 1976 and was transferred to a Reserve unit.  He reenlisted in the USAR on 9 September 1982.

4.  On 15 May 1983, he was counseled for being overweight and was advised his continued participation in the USAR was contingent upon him reducing his weight.

5.  He was honorably discharged from the USAR in the rank of specialist on 8 September 1989 under the provisions of AR 135-178 (Army National Guard and USAR Enlisted Administrative Separations).
6.  There is no evidence in his record that shows he was promoted to a rank higher than specialist prior to his discharge.

7.  There is no evidence in his records showing he was placed in the Army Weight Control Program and/or he was injured or diagnosed with PTSD prior to his USAR discharge.

8.  He provided a copy of his Chronological Statement of Retirement Points, dated 7 February 2013, which shows he was credited with 6 years, 11 months, and 27 days of qualifying years of service.

9.  Title 10, U.S. Code, sections 12731 through 12739, authorizes retired pay for Reserve Components military service.  Under this law, a Reserve Soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60.  After 1 July 1949, a qualifying year is one in which a Reserve Soldier earned 50 retirement points or more.  The term “good years” is an unofficial term used to mean years in which 50 or more retirement points are earned during each year, and which count as qualifying years of service for retirement benefits at age 60.

10.  AR 600-9 sets the policies for the implementation of the Army Body Composition Program.  The regulation stated Soldiers are required to meet the prescribed body fat standard and Soldiers will be screened every 6 months, at a minimum, to ensure compliance with this regulation.

11.  The doctrine of laches is defined by Black’s Law Dictionary, sixth edition, as the neglect to assert a right or claim which, taken together with lapse of time and other circumstances causing prejudice to the adverse party, operates as a bar in a court of equity.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered and found not to have merit.

2.  There is no evidence he was enrolled in the Army Weight Control Program prior to his 1989 discharge or that he was discharged for failing to meet prescribed body fat standards.  There is also no evidence and he provided none to show he sustained injuries while attempting to maintain his physical condition in the USAR and/or he was suffering from or was diagnosed with PSTD at that time.  

3.  There is no evidence and he did not provide sufficient evidence showing he was undergoing medical proceedings and/or that he had failed to meet medical retention standards at the time.  That was required before a determination of medical discharge or disability could be made.  

4.  Reserve Soldiers are required to complete a minimum of 20 qualifying years of service to be eligible for retired pay.  He did not and he has not shown he was unjustly or erroneously prevented from doing so.  Therefore, he is not entitled to the requested relief.

5.  The lapse of over 20 years between the time he was discharged and his first application to this Board has made it difficult if not impossible for all the facts surrounding his case to be known.  An arbitrary ruling in his favor at this time, without knowing what his records would have shown, would cause prejudice to the Government.  Therefore, the doctrine of laches is invoked in his case.

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 to amend the decision of the ABCMR set forth in Docket Number AR AR201200661, dated 6 November 2012.



      _______ _  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)                                         AR20130011255





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ABCMR Record of Proceedings (cont)                                         AR20130011255



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