MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:    

	BOARD DATE:           1 July 1999      
	DOCKET NUMBER:   AR1999023116

	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. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. Joann H. Langston		Chairperson	
	Mr. Fred K. McCoy		Member	
	Mr. Stanley Kelley		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 the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	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:  In effect, the applicant requests that he be retired from the Army with 20 years of active Federal service.  

He states that he was unjustifiably forced out of the Army prior to completing      20 years of service, and requests restitution for the remaining years.  The Army was aware of his weight when he entered the service.  All of the rich and weight producing food [in the Army] simply hampered his many attempts to reduce his weight.   

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

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

The applicant enlisted in the Army for four years on 2 September 1976 and remained on continuous active duty until his discharge.  He served in various locations throughout the world, to include Germany, Alaska, Fort Hood, Texas, and Fort Knox, Kentucky.  He completed numerous military schools, including the basic NCO course, and attained the rank of Sergeant E-5.  The applicant has been awarded the Army Achievement Medal on three occasions, and has received five awards of the Good Conduct Medal. 

A 25 August 1976 report of medical examination indicates that the applicant’s height was 67”, and his weight, 185 pounds.

A 14 November 1990 DA Form 268, Report to Suspend Favorable Personnel Actions (Flag) indicates that his records were “flagged” because he was on a weight control program.

An NCO evaluation report for the period ending in January 1991 shows that the applicant did not meet the body fat standards of Army Regulation 600-9. 

On 26 April 1991 the applicant’s commanding officer at Fort Hood, Texas notified the 546th Personnel Service Company (PSC) that the applicant was in compliance with the provisions of Army Regulation 600-9 and was therefore removed from the weight control program. 

An NCO evaluation report for the period ending in June 1991 shows that he did meet the body fat standards of AR 600-9; however, a report ending a year later in         June 1992 shows that he was enrolled in the remedial physical training test program, was making no progress, and that he did not meet the body fat standards of            AR 600-9.  His height and weight were listed as 68” and 266 pounds, respectively.  He was flagged for being on the weight control program; and he was so notified.        His commander also notified him that a goal of 3-8 pounds of weight loss per month was considered to be satisfactory progress, and that failure to make satisfactory progress could result in his separation from the Army.  On 16 June 1992 the applicant stated that he understood his responsibilities to achieve the body fat standards to have his weight recorded periodically.  Correspondence that same date shows that the applicant was 83.5 pounds overweight and exceeded the body fat standards by 3.93 percent.  He was provided nutrition counseling, and his overweight condition was determined not due to a medical condition.  A DA Form 5500-R, Body fat content worksheet, shows his weight as 262.50 pounds, and his body fat percentage as 27.93 percent.  

A DA Form 5500-R dated 13 July 1992 show his weight as 266 pounds, and his body fat percentage as 27.93 percent.  A 4 August form shows his weight again as         266 pounds, and his body fat percentage as 29.23 percent.  In September he dropped to 250 pounds, with a body fat percentage of 24.80 percent; however, in October he ballooned to 266 pounds, with a percentage of 26.23 percent.

On 24 November 1992 the commanding officer of the medical department activity at Fort Hood approved a recommendation to separate the applicant from the Army under the provisions of Army Regulation 635-200, chapter 5-15.  He was discharged on 31 December 1992 for failure to meet the Army weight control standards.  He had 16 years, 3 months, and 29 days of service.  His character of service was honorable and he received a separation payment of $14,718.60.  

Army Regulation 600-9 establishes policies and procedures for the implementation of the Army weight control program.  Paragraph 21 of that regulation outlines the procedures to follow when a soldier’s body weight exceeds the screening table contained in that regulation, and whose body fat composition exceeds the maximum allowable percent body fat standards. 

That paragraph states in pertinent part that a soldier will be entered in a weight control program if classified as overweight and health care personnel discover no underlying or associated disease as the cause of the condition.  The required weight loss goal of 3 to 8 pounds per month is considered a safely attainable goal to enable soldiers to lose excess body fat and meet the body fat standards.  Weigh-ins will be made by unit personnel monthly.  Commanders will remove individuals administratively from a weight control program as soon as the body fat standard is achieved.

Following removal from a weight control program, if it is determined that an individual exceeds the screening table weight and the body fat standard within 12 months from the date of the previous removal from the program and no underlying or associated disease process is found as the cause of the condition, the individual will be subject to separation under the provision of AR 635-200.

Army Regulation 635-200 provides for the discharge of enlisted soldiers from the Army.  Paragraph 5-15 of that regulation states in pertinent part that soldiers who fail to meet the body composition/weight control standards set forth in AR 600-9 may be separated when such condition is the sole basis for separation.  Separation action may not be initiated until the soldier has been given a reasonable opportunity to comply with the weight/body fat reduction goals prescribed for him by health care personnel. 
 
Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 31 December 1992, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 31 December 1995.

The application is dated 30 October 1998 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

_JHL____  __FKM___  __SK____  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999023116	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990701	
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. 142.00		
2.  110.00		
3.		
4.		
5.		
6.