MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           14 October 1998
	DOCKET NUMBER:   AC98-09786

	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. John N. Slone		Chairperson	
	Mr. Ernest M. Willcher		Member	
	Mr. Robert W. Garrett		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 her discharge for weight control failure be voided, that she be reinstated on active duty, and that she be given back pay and allowances from the date of her discharge to the date of her reinstatement.

APPLICANT STATES:  Through counsel, that the applicant’s separation board was fatally flawed due to the applicant being transferred to a unit outside the jurisdiction of the command which convened the board; due to no written notice being given on the date and time of the board; and due to the board being convened without the applicant’s civilian counsel present.

Counsel explains that the applicant had been notified by her civilian counsel that the board was to be convened on 1300 hours the following day; she had come in to see her military counsel the morning of the board to talk to her military counsel; and the board President called the board into session at 0930 even though the applicant’s lead civilian counsel was not present.  During the morning the Government presented its evidence, which forever denied her civilian counsel the critical cross examination process in the case.  Counsel then relates the applicant’s assignment status when she was notified of the board hearing, and argues that her command’s reassignment of her back to her old unit prior to the convening of the board verifies the validity of that error.

In support of the applicant’s request counsel submits the board notification sent to the applicant, dated 22 October 1996, which informed her that the board was to convene at 0800 hours on 6 November 1996.  Counsel also submits orders dated 16 July 1996 which deactivated the applicant's unit, and orders dated 24 October 1996 which amended orders dated two days before, 22 October 1996.  That amendment altered the original assignment orders and assign the applicant to a unit under the jurisdiction of the command which was convening the board.  Lastly, counsel submits a transcript of the board’s proceedings.  Those proceedings show that the board convened on 2 December 1996 at 0928 hours.  In those proceedings it is recorded that “ . . . her legal counsel, through miscommunication, was not present and would not be able to make it until 1300 or later.  He further stated that as a group, both counsel and the President had decided that they would proceed with the government’s case so the board members would have an opportunity to get familiar with the background of the case and the evidence presented, and that they would break and reconvene later to continue with the proceedings with [the applicant’s] civilian attorney present.”  The applicant’s first sergeant testified and submitted documentation into evidence which showed that the applicant had been on the weight control program for about 2 years, that she had received nutritional counseling, that she had been medically screened to determine whether she had a medical reason for her overweight condition, and that she had not made satisfactory progress on the program as defined by Army regulations.  The first sergeant added that the applicant “has spent a lot of time getting out of [physical training], getting out of [the weight control] programs in general.  Shes been elusive.  She’s tried to stifle the system.”  During those proceedings the applicant’s military counsel cross examined the witnesses which were called by the Government.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant enlisted in the Regular Army on 22 September 1981, was awarded the military occupational specialty of administrative specialist, and was promoted to pay grade E-4.  She was honorably released from active duty at the expiration of her term of service on 21 September 1984.

She had a break in active service until her reenlistment on 9 October 1987.  She was promoted to pay grade E-5 and served in Southwest Asia during Operation Desert Storm.

On 21 July 1994 the applicant was found to exceed the maximum allowable body fat standards.  She was 4 foot 11 ½ inches tall and weighed 166 pounds.

She had a suspension of favorable personnel actions imposed against her, she was given nutritional counseling, and she was medically screened.

In her subsequent tapings, she was consistently found to exceed the acceptable body fat standards and not to have had any acceptable weight loss.

On 17 January 1996 the applicant’s commander notified her of her intent to recommend her discharge due to weight control failure.

On 16 February 1996 the applicant’s commander counseled the applicant.  In that counseling statement it was recorded that the applicant had given unit personnel a copy of an expired physical profile stating that she would be excused from physical training and weigh ins until her Gulf War Syndrome evaluation was completed.  At that time the applicant’s commander determined that the last time the applicant had received medical treatment, other than routine sick call, was in September 1995.  Telephonic contact with the physicians conducting the Gulf War Syndrome evaluations determined that weight gain was not one of the symptoms of Gulf War Syndrome, that it would be highly unusual to issue a soldier a no weigh in physical profile, and the form which the profile was written, a sick slip, cannot be used for a permanent physical profile.

The applicant requested to have a board of officers consider her case.  On 17 April 1996 she was notified that the board was scheduled to convene on 3 May 1996 at 0800 hours.

On 22 October 1996 she was notified that she was to appear before the board on 6 November 1996 at 0800 hours.

On 2 December 1996 the board of officers convened, found that the applicant exceeded the acceptable body fat standards, and had not made satisfactory progress on the Army weight control program.  The board recommended that the applicant be separated.

That recommendation was approved and the applicant was honorably discharged due to weight control failure on 31 March 1997.

Army Regulation 15-6, which provides the guidance for convening administrative separation boards, paragraph 5-6, Counsel, states that “Whenever practicable, the board proceedings will be held in abeyance pending respondent’s reasonable and diligent efforts to obtain civilian counsel.  However, the proceedings should not be delayed unduly to permit a respondent to obtain a particular counsel or to accommodate the schedule of such counsel.”

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

1.  Neither the applicant nor her counsel has contested the validity of her noncompliance with the Army weight control program.  They are contesting the validity of the board based on perceived procedural errors.

2.  The transfer of the applicant outside the command which appointed her board is immaterial.  The order was amended to keep her within the specified chain of command.

3.  The applicant’s hearing was rescheduled twice, delaying the board hearing for 7 months.  While the record does not show exactly who requested the delay, it was very probable that it was at the request of the applicant’s civilian counsel.  There is also no documentation to show the time the 2 December 1996 hearing was to convene.  However, it appears from the statements made at the hearing “her legal counsel, through miscommunication, was not present and would not be able to make it until 1300 or later”, that the hearing was scheduled in the morning, not in the afternoon.  This is further supported by the fact that the first two hearings were scheduled for the morning.  In addition, it appears from the statement “He further stated that as a group, both counsel and the President had decided that they would proceed with the government’s case”, that the absence of her civilian legal counsel was waived.  Although the applicant’s civilian counsel has made contrary statements as to how these events occurred, he has not submitted any evidence to substantiate his contentions.

4.  In any event, the board president was not required by AR 15-6 to unduly delay the hearing to accommodate the applicant’s civilian counsel and the applicant was represented by military counsel at that time.  As such, this Board does not accept the convening of the board without civilian legal representation as an error or injustice.

5.  The evidence of record clearly shows that the applicant had not been in compliance with the Army weight control program and had not made satisfactory progress in losing weight for well over two years.  Therefore, her separation for weight control failure was appropriate and there is no reason to change it.

6.  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

EMW   RWG    JNS     DENY APPLICATION

                                             for   Edmund P. Mercanti
Loren G. Harrell
Director