DEPARTMENT OF THE NAVY
                    BOARD FOR CORRECTION OF NAVAL RECORDS
                                2 NAVY ANNEX
                          WASHINGTON DC 20370-5100

                                                 WMP
                                                 Docket No. 3926-02
                                                 20 February 2003



From: Chairman, Board for Correction of Naval Records
To:   Secretary of the Navy

Subj: REVIEW OF NAVAL RECORD OF


Ref:  (a) 10 U.S.C. 1552
         (b)     SECNAVINST 1900.7G

End:  (1) DD Form 149 w/attachments
         (2)     Case Summary
         (3)     Subject’s naval record

1.    Pursuant to the provisions of reference (a), Petitioner, a former
enlisted member of the Navy, applied to this Board requesting, in effect,
that his separation program designator (SPD) code be changed in order that
he may be eligible to receive separation pay.

2.    The Board, consisting of Messrs. Pfeiffer, Geisler, and Zsalman,
reviewed Petitioner’s allegations of error and injustice on 12 February
2003 and, pursuant to its regulations, determined that the corrective
action indicated below should be taken on the available evidence of record.
Documentary material considered by the Board consisted of the enclosures,
naval records, and applicable statutes, regulations and policies. In
addition, the Board considered the advisory opinion furnished by the Head,
Enlisted Performance Branch, Navy Personnel Command, a copy of which is
attached.

3.    The Board, having reviewed all the facts of record pertaining to
Petitioner’s allegations of error and injustice, finds as follows:

     a.     Before applying to this Board, Petitioner exhausted all
administrative remedies available under existing law and regulations within
the Department of the Navy.

     b.     Although it appears that Petitioner’s application to the Board
was not filed in a timely manner, it is in the interest of justice to waive
the statute of limitations and review the application on its merits.

     c.     Petitioner reenlisted in the Navy on 15 July 1993
for four years as a first class petty officer (MS1; E-6) after over 16
years of prior active service.

     d.     The record further shows that Petitioner failed to maintain
bodyfat standards, as evidenced by entries on the records of his physical
readiness testing. These records indicate bodyfat percentages of 26% in
October 1991, 27% in March 1992, and 29% in May 1992. Bodyfat in excess of
22% 3was deemed “overfat” and more than 26% bodyf at was considered
“obese.”

     e.     On 31 July 1992 Petitioner completed level III obesity treatment
and was placed in a 12 month aftercare program, which was completed on 20
August 1993. An administrative counseling was conducted upon his completion
of level III treatment, in which he was warned that he still was not within
Navy physical readiness standards and warned that separation could result
if consistent progress was not maintained.

     f.     After the completion of level III treatment and aftercare,
Petitioner again failed to maintain bodyf at standards as evidenced by his
bodyf at percentages of 25% in April 1994 and 34% in September 1994.

     g.     On 27 June 1994 Petitioner was advised that administrative
separation action was being initiated by reason of weight control failure.
He was advised of and waived all of his rights concerning the proposed
separation, except for the right to obtain copies of documents supporting
the basis for the proposed separation and the right to make verbal or
written statements. On 12 July 1994, he submitted a statement in rebuttal
to his proposed separation.

     h.     On 15 November 1994, Petitioner was separated by reason of
weight control failure with an honorable discharge, and was assigned an SPD
code of “KCR,” which means that the separation was voluntary.

     i.     An advisory opinion from the Favorable Enlisted Separations
Division of the Navy Personnel Command (PERS-823) essentially states that
since he waived his administrative board, Petitioner should have received
SPD code “HCR,” indicating that his separation was involuntary.

     j.     If Petitioner’s record is corrected to show that he was
involuntarily separated, he will be eligible for one-half separation pay,
in accordance with the provisions of reference (b).






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CONCLUSION:

Upon review and consideration of all the evidence of record, the Board
concludes that Petitioner’s request warrants favorable action. The Board
concludes that Petitioner was correctly processed for administrative
separation by reason of failure to meet physical readiness requirements due
to weight control failure. However, the Board concurs with the advisory
opinion, which states that the assigned separation program designator (SPD)
code of “KCR” was incorrectly assigned, as the separation was involuntary.
Accordingly, the record should be corrected to show that he received an SPD
code of “HeR” vice “KCR”. Since this change makes Petitioner eligible for
separation pay, an appropriate entry to that effect should be made in the
record.

RECOMMENDATION:

     a.     That Petitioner’s naval record be corrected by changing. the SPD
code of “KCR”, assigned on 15 November 1994, to “HCR”.

     b.     That the record be further corrected to state that Petitioner is
to receive one—half separation pay.

     c.     That any material or entries inconsistent with or relating to
the Board’s recommendation be corrected, removed or completely expunged
from Petitioner’s record and that no such entries or material be added to
the record in the future.

     d.     That any material directed to be removed from Petitioner’s naval
record be returned to the Board, together with a copy of this Report of
Proceedings, for retention in a confidential file maintained for such
purpose, with no cross reference being made a part of Petitioner’s naval
record.

4. It is certified that a quorum was present at the Board’s review and
deliberations, and that the foregoing is a true and complete record of the
Board’s proceedings in the above entitled matter.


ROBERT D. ZSALMAN                                  ALAN E. GOLDSMITH
Recorder                                           Acting Recorder








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5. Pursuant to the delegation of authority set out in Section 6(e) of the
revised Procedures of the Board for Correction of Naval Records (32 Code of
Federal Regulations, Section 723.6(e)) and having assured compliance with
its provisions, it is hereby announced that the foregoing corrective
action, taken under the authority of reference (a), has been approved by
the Board on
behalf of the Secretary of the Navy.


                              W. DEAN PFEIFFER
                             Executive Director




























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