MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            31 March 1999
	DOCKET NUMBER:    AR1999016249

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

	Mr. Loren G. Harrell		Director	
	Mr. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. Curtis W. Barbee		Chairperson	
	Mr. John H. Kern		Member	
	Mr. Walter T. Morrison		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

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

APPLICANT REQUESTS:  Through counsel, that his discharge from the USAR be voided, that his records be corrected to show that the two years following his erroneous discharge were creditable years of service for retired pay, that he be issued a letter certifying his retirement eligibility at age 60, and that he be transferred to the Retired Reserve on the date he reached retirement eligibility based on those corrections.  Counsel also requests any other form of relief deemed appropriate by the Board.

COUNSEL STATES:  The applicant’s counsel chronicles the applicant’s service, citing excerpts of selected evaluation reports and other significant events in the applicant’s career.  Counsel details the applicant’s entry into the weight control program, the suspension of favorable personnel actions imposed against him, his weight as recorded by the unit, the results of physical examinations he took, the initiation of elimination action against him due to weight control failure, and of the administrative board hearing conducted to determine whether he should be involuntarily separated.  Counsel quotes the applicant’s command’s glowing comments on his knowledge and performance of duties, their recommendation to retain him in the unit, and his commander’s statement that he had no choice but to request his separation.  Counsel also quotes the applicant’s (then) military counsel’s arguments to dismiss the case against him.  Counsel then tells how the applicant was identified as a compulsive overeater and began going to Overeaters Anonymous.  Counsel contends that the applicant’s separation was in violation of Army regulations due to the fact that he had over 18 years of satisfactory service at the time of his discharge, which required his retention until he reached retirement eligibility at 20 qualifying years of service; how his separation with over 18 years of active service would require the approval of the Commander, Army Reserve Personnel Center (ARPERCEN), an approval which was not obtained; that the applicant’s commander’s recommendation to separate him was due solely to inappropriate command influence; that the elimination board blatantly ignored his command’s comments on his worth and recommendation for his retention; that under the mobilization asset policy the applicant was required to be transferred to the USAR Control Group and not discharged if, in fact, he did not have 18 years of service and could be separated at all; that the elimination board did not conclude its action within the 90 day limitation specified by regulation; that the applicant was not afforded nutritional education and counseling as required by regulation; that the standards of determining body fat standards changed two months before the applicant’s board was appointed and well prior to his discharge and he was never tested under the new standards; that he was not given a medical examination when separation action was actually initiated to determine whether he had an underlying medical reason for his overweight condition; and that the applicant was overweight when he enlisted in the USAR and remained overweight throughout his career in the USAR, including when he was reenlisted on three occasions and when he was promoted to pay grade E-6.
EVIDENCE OF RECORD:  The applicant's military records show:

He enlisted in the Regular Air Force on 29 July 1969, then being 20 years old (date of birth 13 September 1948), was promoted to pay grade E-4, and was honorably released from active duty on 27 July 1973.  He enlisted in an USAR unit on 10 August 1975 where he served as an intelligence analyst.  He reenlisted for 6 years in pay grade E-5 on 30 May 1981 and was promoted to pay grade E-6 on 19 November 1981.

He was counseled by his commander about being overweight on 16 March 1980, weighing 241 pounds with a maximum allowable weight of 196 pounds, and counseled again on 26 September 1982, weighing 240 pounds.  He was given counseling by a physician concerning diet and exercise necessary to lose weight on 11 December 1982 and officially placed in the weight control program on 26 February 1983.

Thereafter his weight was recorded on a monthly basis, with the weigh-ins showing that while his weight went up and down he failed to lose the weight required to be in compliance with the Army’s standards.  

On 21 October 1984 the applicant’s commander requested that he be transferred to the USAR Control Group (Reinforcement, or IRR) based on his having employment conflicts with attendance of drills.  That request was denied and the applicant’s commander was directed to initiate action to separate him for weight control failure.  On 10 July 1985 his commander notified him of his intent to recommend his discharge due to his failure to make satisfactory progress on the Army weight control program.  At his last weigh-in in June 1985 he weighed 268 pounds, having gained 11 pounds from the preceding month.

On 13 February 1986 the applicant’s commander requested that he be transferred to the IRR due to weight control failure.  That request was denied and the applicant’s commander was directed to notify him that elimination action was being initiated against him and of his right to a separation board.  The applicant requested a board of officers and that board was appointed on 15 December 1986.

The applicant’s military counsel made a motion to have the case against the applicant dismissed.  The reasons specified for that motion were that a new version of the weight control regulation had become effective which changed the method of determining body fat content; that the medical evaluation of the applicant was 1 ½ years old and did not reflect whether there was a current medical condition which precluded his losing weight; and that there was improper command influence in initiating the elimination action against the applicant.

That motion was not accepted and the board convened on 11 February 1987.  The board found that the Government had fully complied with the provisions of all governing regulations; that the applicant had failed to meet the weight control standards of Army regulations; that the applicant’s overweight condition was not due to a medical condition; that the applicant’s overweight condition rendered him unable to meet the physical demands of his duties under combat conditions; that the applicant did not present a trim military appearance; and that all supervisory personnel in the applicant’s unit recommended his retention in the USAR.  Based on those findings the board recommended that the applicant be honorably discharged from the USAR.

While the elimination board’s record of proceedings was being processed, the applicant reached the expiration of his term of service (ETS) and was extended for 6 months, giving him a new ETS of 29 November 1987.

The appropriate authority approved the elimination board’s recommendation and the applicant was honorably discharged on 9 September 1987, less than 90 days prior to his ETS.  The applicant’s last recorded weigh-in in August 1985 showed that he then weighed 277 pounds.

Army Regulation 600-9, in effect at the time, paragraph 5 stated that “The Army traditionally has fostered a military appearance which is neat and trim.  Further, an essential function of day-to-day effectiveness and combat readiness of the Army is that all personnel are healthy and physically fit.  Self-discipline to maintain proper weight distribution and high standards of appearance are essential to every individual in the Army.  Paragraph 21 specified that initiation of separation action “will be followed unless a medical reason is found to preclude the loss of weight or there is other good cause to justify additional time in the weight control program.”

Army Regulation 135-178, in effect at the time, paragraph 1-22c, states that soldiers who have less than 3 months to serve on their military obligation will be discharged in lieu of being transferred to the IRR.  Paragraph 1-9 stated that processing time for administrative board separations would not exceed 90 days, but continued that “Failure to process an administrative separation within these time frames will not create a bar to separation . . .“  Paragraph 9-7 provided for the discharge of a reservist when it was discovered that his enlistment or reenlistment would not have occurred had the relevant facts been known by the Government or had appropriate regulations been followed.

Army Regulation 140-111, in effect at the time, table 2-1, rule f, body weight, specifies that a soldier who does not meet the weight/body fat content of 
AR 600-9 was disqualified for reenlistment and no waiver was authorized.  Table 3-1, rule O, specifies that a soldier who is on the weight control program may only be extended if he or she is making satisfactory progress in the program.

Army Regulation 140-158, paragraph 3-5, in effect at the time, nonpromotable status, stated that soldiers are nonpromotable if they were overweight as defined by AR 600-9.

Title 10, USC § 12732(A)(2) specifies that a creditable year of service for retired pay is a year in which a reservist earns a total of at least 50 retirement points.

In the processing of this case an advisory opinion was obtained from the Review Boards Agency (ARBA) Medical Advisor who stated that the applicant had 16 years and 1 month of service.  The medical Advisor also stated that medical and psychiatric evaluations conducted in 1984 and 1987 showed that there was no medical cause for his obesity.

The applicant’s counsel was furnished a copy of this advisory opinion and responded by stating that the opinion was a “meaningless formality” and asks the Board to discount that opinion based on “the total failure of the ARBA advisory to address or reconcile the specific and detailed matters and evidence cited in applicant’s brief as ground for relief.”  Applicant’s counsel, for the first time, addresses creditable service as being separate and distinct from satisfactory service, and challenges the validity of the applicant’s retirement point calculation.  Counsel submits a recalculation of the applicant’s retirement points dated 14 January 1998 in which he is shown to have 13 years of creditable service Counsel then reiterates his original arguments to the Board.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations and advisory opinion, it is concluded:

1.  The applicant’s counsel has stated that there were numerous violations of law and regulation in the applicant’s case, each of which, in and of itself, would warrant granting the applicant the relief he seeks.  The Board finds it necessary to address each contention specifically to determine the validity of the contention.

a.  He had over 18 years of satisfactory service at the time of his discharge, which required his retention until he reached retirement eligibility at  20 qualifying years of service.  Applicant’s counsel uses the terms “satisfactory service”, “qualifying service” and “active service” interchangeably, as if they were the same things.  This is untrue.  Satisfactory service denotes active duty and/or assignment to the ready reserve, regardless of whether the reservist is performing any duties.  Qualifying service is service in which a reservist earns at least 50 retirement points a year.  Active service is active duty.  The applicant had only 13 years of qualifying service for retired pay and did not fall within any regulatory or statutory sanctuary provisions which require 18 qualifying or active years of service.  

b.  His separation with over 18 years of active service would require the approval of the Commander, Army Reserve Personnel Center (ARPERCEN).  Since he did not have 18 qualifying or active years of service, this does not apply.

c.  The applicant’s commander’s recommendation to separate him was a direct result of inappropriate command influence.  The Army regulation in effect at the time required the initiation of separation action on a soldier who did not make satisfactory progress on the weight control program if there were no medical reason for the individual’s inability to lose weight.  The applicant’s command’s higher headquarters was only complying with Army policy.

d.  Under the mobilization asset policy the applicant was required to be transferred to the USAR Control Group and not discharged.  The applicant was within 3 months of ETS and was required to be discharged in lieu of being transferred to the IRR in accordance with Army regulations.

e.  The elimination board did not conclude its action within the 90 day limitation specified by regulation.  The same paragraph quoted by counsel also stated that the failure to comply with that goal was not a bar to separation.

f.  That the applicant was not afforded nutritional education and counseling as required by regulation.  The standards for determining body fat standards changed two months before the applicant’s board was appointed and well prior to his discharge and he was never tested under the new standards.  The regulation governing the Army Weight Control Program changed on 13 February 1987 to include the requirement for weight reduction counseling by health care personnel and to use a different method of determining body fat content.  Those provisions did not apply in his case since he had already been determined not to have made satisfactory progress under the standards in effect prior to the implementation of that change.  However, it is noted that the applicant was, in fact, provided weight loss counseling by military medical personnel on 11 December 1982.

2.  Counsel’s quotation of only select portions of regulations and laws, as well as his interchangeable use of creditable/active/satisfactory service, is quite misleading.  However, a full review of the laws and regulations in effect at the time make it apparent that the applicant’s separation was processed in accordance with the law and regulation in effect at the time.

3.  It is noted that even if the applicant’s elimination board had been set aside as motioned by his military defense counsel, he would have been discharged at his ETS.  He had not been making satisfactory progress on the weight control program, a prerequisite for a second extension of his enlistment.  As such, questions of the elimination board’s appropriateness are actually moot points.

4.  The applicant does not turn age 60 until 13 September 2008.  If he loses sufficient weight he may be eligible to again enlist in the USAR and achieve retirement eligibility.  The Army will not make special provisions to allow soldiers to achieve retirement eligibility.  Soldiers must meet the standards required of all reservists. 

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

_CWB___  _JHK____  _WTM__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC9814095	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.	110.03	
2.		
3.		
4.		
5.		
6.