MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:           

	BOARD DATE:                22 June 2000              
	DOCKET NUMBER:        AR1999019572

	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. Carl W. S. Chun		Director	
	Mr. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Roger W. Able		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APPLICANT REQUESTS:  Through counsel, that his discharge from the ARNG be rescinded, that he be discharged from the ARNG and transferred to the USAR Control Group (Reinforcement) effective the date the Board’s recommendation is approved, and that that he be awarded 125 retirement points a year from the date of his discharge to the date the Board’s decision is approved.  Applicant’s counsel later amended his request to request that the Board grant any alternative relief that would render the applicant equivalent compensation for the wrong he has been done.

APPLICANT STATES:  Through counsel, that the applicant was not given due process since he was not given the opportunity to request a board of officers to consider his case, a right established in 20 May 1987 edition of NGR 600-200.  Counsel continues that the error was discovered in 1994 when the applicant retained him and his records were reviewed, so the application, counsel argues, is filed within the 3-year statute of limitations.  Counsel also states that the ARNG has acknowledged that the applicant was discharged in error (no such acknowledgment is contained in the documents provided to the Board by the applicant or his counsel).  In support of the applicant’s request, counsel submits a letter he sent to the Adjutant General of Oregon dated 14 March 1995 in which he stated that it was evident that an out of date regulation was used in the applicant’s discharge, that the applicant was not given a reasonable opportunity to comply with weight reduction goals, that he was denied counsel, and was denied consideration by a board of officers.

EVIDENCE OF RECORD:  The applicant's military records were not provided to the Board.  As such, there are no documents pertaining to the applicant’s entry into the Army weight control program, his progress on the weight control program, or the type of notification he was given when he was being considered for separation due to weight control failure.

He enlisted in the ARNG on 16 April 1977 with 4 years, 7 months and 15 days prior reserve service not on extended active duty, and 1 year and 9 months of prior active service.

On 2 April 1987 the applicant’s unit submitted a letter in which it was stated that they sent the applicant a document on 15 March 1987 directing him to provide medical evidence, from his own physician and at his own expense, to demonstrate he had an underlying disease process that would satisfactorily explain his unsatisfactory progress on the Army weight control program.  The author continued that the applicant refused, in writing, to provide medical 

documentation, and stated that if the command wanted him to undergo a physical examination the command would have to pay for it.  The author of this document stated that since the applicant had refused to undergo medical screening exams in “early March” he believed that the command had done everything it could to establish the applicant’s medical ability to lose weight and recommended that separation action based on weight control failure be finalized.

The applicant was honorably discharged from the ARNG and transferred to the USAR Control Group on 1 June 1987 in pay grade E-6. 

NGR Regulation 600-200 dated 14 November 1986, paragraph 7-9a authorizes the separation of personnel for “failure to meet Army weight control standards.”

NGR Regulation 600-200 dated 20 March 1987, effective 1 April 1987, paragraph 8-26m, authorizes separation for failure to meet Army weight control standards provided the command furnishes a reasonable opportunity to comply with weight reduction goals.

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.  Since it is evident that separation action was initiated against the applicant in March 1987, the governing regulation was NGR Regulation 600-200 dated 14 November 1986.  The revised edition, while dated 20 March 1987, was not effective until 1 April 1987.  As such, there was no regulatory requirement to give the applicant a reasonable opportunity to comply with weight reduction goals.

2.  However, even if the April 1987 provisions applied to the applicant, his refusal to cooperate with the command’s efforts to evaluate his weight reasonably forfeited any entitlement to additional time to comply with weight standards.  As such, there is no indication the applicant was not given ample time to comply with the weight standards before his separation.

3.  In view of the preceding conclusions, it would appear that the applicant’s separation was accomplished in accordance with regulations in effect at the time.

4.  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

__lls ____  __aao___  __rwa___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000622	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.