PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           13 May 1999             
	DOCKET NUMBER:   AR1998002455

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Ms. Gale Thomas		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. Samuel Calderon		Member	
	Mr. Kenneth L. Wright		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his records be corrected to show he was promoted to the pay grade of E-6 on 1 April 1998.

3.  The applicant states that he was denied a promotion point reevaluation in December 1997; that adverse administrative action was taken against him for being overweight, when the cause of his being over weight was due to a medical condition. 

4.  The applicant’s military records show that he was recommended for promotion to E-6 on 13 February 1992.

5.  On 16 August 1996, he was placed under suspension of favorable personnel actions (flagged) for being on the Weight Control Program.

6.  A physical examination determined that the applicant suffered from a biceps muscle rupture sustained in May 1991 and reinjured in an airborne operation in October 1994; and hypertension.  

7.  On 8 December 1997, the battalion surgeon determined that the cause of the applicant being overweight was do to a medical condition.  The applicant had been on medication for weight reduction and hypertension and was progressing well until he was unable to get refills for his medications.  

8.  On 12 December 1997, the applicant was originally denied a promotion point reevaluation because he was under suspension of favorable personnel actions (flagged), however, on 25 August 1998, he was granted a reevaluation.  As a result of the addition of civilian education credits, his reevaluation increased his promotion point’s from 729 to 760.  

9.  On 12 January 1999, the applicant’s flag was closed as a result of a medical board’s determination that the cause of the applicant’s overweight condition was due to a medical condition.  They recommended medical treatment for his pathological medical disorder. 

10.  Army Regulation 600-9 (The Army Weight Control Program) states that once it has been determined that an individual exceeds the weight standards, he will be entered into a weight control program, have his records flagged, and referred to health care personnel for weight reduction counseling.  It further states, that a medical evaluation will be accomplished when the individual has a medical limitation.  If the individual is determined to exceed the body fat standard and the condition is due to an underlying medical condition, health care personnel will prescribe treatment to alleviate the condition and return the individual to their unit. 

11.  Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions), states that flags for weight control block only attendance at full time civil or military schooling, promotion, assumption of command, reenlistment or extension of service.  
CONCLUSIONS:

1.  The evidence confirms that in accordance with procedures in AR 600-8-2, the applicant was erroneously denied a promotion point reevaluation on 12 December 1997.  Had the promotion reevaluation been accomplished the applicant would have had 760 points.

2.  In spite of the fact that regulatory guidance requires that a soldier be flagged when he is entered into a weight control program, thus precluding him from being promoted, the Board contends that when it is determined that the weight condition is or was medically related the individual should not be penalized for actions which would have occurred had he not been flagged.  This contention is based on the same premise which allows individuals to receive retroactive benefits when UCMJ actions are voided or rescinded or when adverse actions (i.e. Letters of Reprimand, etc.) are removed from an individual’s records.

3.  Had the applicant been given a reevaluation in December 1997, and had a more timely determination been made that his weight condition was medically related, he would have met the promotion point cutoff score for promotion on 
1 April 1998 and been promoted to pay grade E-6.

4.  In view of the foregoing, and in the interest of justice, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that the applicant was promoted to the pay grade of E-6, with an effective date and date of rank of 1 April 1998, with entitlements to all pay and allowances.

BOARD VOTE:  

__rvo___  ____sc__  ___klw__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1998002455	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990513	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1. 131.05		
2.		
3.		
4.		
5.		
6.