BOARD DATE:	  8 January 2015

		DOCKET NUMBER:  AR20140009075 


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, in effect, an upgrade of his general discharge to an honorable discharge.

2.  The applicant states the “dishonorable” (i.e., general) discharge was because the Army started the overweight program and he was unable to meet the standards due to his large bone structure.  At the time, he was told the discharge would be automatically ungraded to an honorable discharge in 6 months.

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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.


2.  After having had prior service, the applicant enlisted in the Regular Army on 
8 December 1982.  He was awarded military occupational specialty 63N (M60A1/A3 Tank System Mechanic).  He served in Germany from 24 May 1983 through 1 May 1984.

3.  A Résumé of Rehabilitative Efforts shows that on 28 July 1983 he was found to be overweight.

4.  On 25 August 1983, the Brigade Surgeon recommended the applicant for the weight reduction program.

5.  A DA Form 4856 (General Counseling Form), dated 12 September 1983, shows he received counseling on/for:

   a.  12 July 1983 – he received initial counseling for being overweight, expectance to maintain his weight in accordance with Army Regulation 600-9 (The Army Weight Control Program), and failing to do so resulting in his elimination from the U.S. Army.

   b.  1 September 1983 – he received counseling for his failure to make progress on the monthly weigh-in for August and a bar to reenlistment being imposed for apathy.

   c.  3 April 1984 – he received counseling for being in the overweight program since 10 August 1983 and not making satisfactory progress as he actually had gained weight and the recommendation for his discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separation), chapter 13.

6.  A DA Form 3822-8 (Report of Mental Status Evaluation), dated 9 March 1984, shows the examining psychologist found the applicant had no mental disease or defect sufficient to warrant disposition through medical channels.

7.  On 5 April 1984, the applicant's company commander initiated action to discharge the applicant under the provisions of Army Regulation 635-200, paragraph 13-2, for failure to comply with Army Regulation 600-9.  He stated that the applicant showed a definite lack of motivation to overcome his weight problem.  Although the applicant had been counseled as to the consequences concerning failure of the overweight program, the applicant had shown no progress in attempting to meet the standards set by the physician's assistant as acceptable weight loss in a given time period.  He advised the applicant of his rights.

8.  On 5 April 1983 after consulting with counsel, the applicant acknowledged receipt of the proposed separation.  He also acknowledged he could receive a general discharge and the results of the receipt of such a discharge.  He further acknowledged he could make application to the Army Discharge Review Board (ADRB) or the ABCMR for upgrading; however an act of consideration by either board did not imply that his discharge would be upgraded.  He waived his rights and elected not to submit a statement in his own behalf.  

9.  On 13 April 1984, the Staff Judge Advocate General’s Office found the recommendation for the applicant's elimination to be legally sufficient.

10.  On 19 April 1984, the separation authority approved the applicant’s discharge and directed the issuance of a general discharge.

11.  He was discharged accordingly on 2 May 1984.  He was credited with completing 1 year, 4 months, and 25 days of active service during the period under review.

12.  There is no evidence he applied to the ADRB within its 15-year statute of limitations for an upgrade of his discharge.

13.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation stated in:

   a.  Paragraph 13-2a(2) – Commanders would  separate a Soldier for unsatisfactory performance when it was clearly established that the Soldier would not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.  The seriousness of the circumstances was such that the Soldier’s retention would have an adverse impact on military discipline, good order, and morale.  The service of Soldiers separated because of unsatisfactory performance would be characterized as honorable or under honorable conditions (general) as warranted by their military records. 

   b.  Paragraph 3-7a - an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.





DISCUSSION AND CONCLUSIONS:

1.  The applicant received counseling between July 1983 and April 1984 for being overweight.  His company commander initiated action to separate him under the provisions of Army Regulation 635-200, paragraph 13-2, based on his 
definite lack of motivation to overcome his weight problem.  The separation authority approved his discharge and directed the issuance of a general discharge.  He was discharged accordingly on 2 May 1984.

2.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows his performance diminished the quality of his service below that meriting a fully honorable discharge.

3.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, he is not entitled to an upgrade of his discharge.

4.  Additionally, the Army does not now have, nor has it ever had, a policy of automatically upgrading an individual's discharge due to the passage of time.

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)                                         AR20140009075





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ABCMR Record of Proceedings (cont)                                         AR20140009075



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