MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:             27 April 2000                  
	DOCKET NUMBER:    AR2000040505

	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. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Ms. Elizabeth Buchannon		Chairperson	
	Mr. Thomas A. Paqan		Member	
	Mr. Kenneth L. Wright		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:  That he be credited with sufficient retirement points to show that he completed 20 qualifying years of service.

APPLICANT STATES:  Due to the downsizing of the Army National Guard (ARNG), unit reorganizations and outright negligence, only partial documentation that pertained to his enlistment status ever reached its destination and only after that documentation was long overdue.  Those actions resulted in his premature and erroneous discharge that has denied him a retired status and a pension at age 60.

In support of his application he submits a letter from the New York ARNG (NYARNG) in which it is stated that the applicant was discharged with 18 years, 4 months and 4 days of creditable service in violation of NGR 600-200.  The NYARNG states that it acknowledges its error and requests this Board grant the applicant’s request.

EVIDENCE OF RECORD:  The applicant's military records were not provided to the Board.  The following information was obtained from the NYARNG.

On 1 August 1992 the applicant, then a sergeant first class in the ARNG, was given a body fat content test and was determined to exceed the allowable body fat content by 9.69 percent.  The applicant was then 72 inches tall and weighed 274 pounds.  That equated to the applicant being 71 pounds overweight.

The applicant was placed on the Army Weight Control Program (AWCP).  He had monthly weight checks performed in September, October and November 1992.  During that period he lost a total of 14 pounds.

On 8 December 1992 the applicant’s commander forwarded a request to extend his enlistment for 1 year.  The NYARNG approved his extension for 6 months, giving him a new expiration of term of service (ETS) of 27 August 1993.

On 27 August 1993, the applicant’s ETS, he was discharged from the ARNG and as a Reserve of the Army.  On the day of his discharge he initiated a 3-year oath of extension, but that extension was never completed and accepted.  He was 43 years old at that time.

An ARNG annual retirement point statement, dated 23 December 1993, shows that the applicant has 18 years, 4 months and 4 days of creditable service.

On 29 March 2000 the NYARNG revoked the applicant’s discharge order, listing “Administrative Error” as the reason for the revocation, and published orders the same day transferring him to the Retired Reserve based on completion of 20 years of service.

Army Regulation 135-178, paragraph 1-22c, and NGR 600-200, paragraph 8-3, state 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 
4-25 provides the separation authority for guardsmen who fail to make satisfactory progress on the AWCP.  Chapter 2 contains the notification procedures required when a reservist or guardsman is being recommended for involuntary separation prior to his or her ETS.  For individuals with 6 or more years of service, those rights include having a board of officers consider their case.

NGR Regulation 600-200, paragraph 7-12, states that soldiers must qualify for continued ARNG service to reenlist.  Table 7-2, Rule D, states a soldier must meet the body fat standards of AR 600-9 and be making satisfactory progress.  Approval authority for extension when a guardsman is on the weight control program is the State AG.

In the processing of this case the staff of the Board contacted the NYARNG on several occasions to obtain documents pertaining to the applicant’s military service.  In those conversations it was established that the applicant was not reenlisted or extended beyond the expiration of his term of service (ETS) of 27 August 1993, and there are no other weight checks after 15 November 1992.  In one document sent to the staff of the Board the NYARNG stated that “It should be stressed that [the applicant] did not receive due process IAW AR 135-178, chapter 2.”

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.  Contrary to the applicant’s and the NYARNG’s contentions, there is no evidence that the applicant was improperly discharged.  He was discharged due to the completion of his reenlistment contract, not for his failure to meet Army weight control standards.  As such, there was no requirement to notify him of his pending separation or to afford him any of the rights provided to soldiers who are being recommended for involuntary separation.

2.  The applicant was determined to be overweight by 70 pounds.  While the records show that the applicant made satisfactory progress for 3 months, there is no record of whether he was making satisfactory progress for the subsequent 9 months he was in the ARNG prior to his discharge.  If he had not been making satisfactory progress for those 9 months, he would not have been eligible for reenlistment or extension.  There is no requirement to extend a soldier who is overweight if he has over 18 but less than 20 years of qualifying service.

3.  It is also noted that the applicant apparently did not attempt to reenlist or extend his enlistment until the actual expiration of his term of service (ETS).  
It is not reasonable to expect an extension initiated on a soldier’s ETS to be processed in time to preclude his discharge, especially when a waiver is required in accordance with NGR Regulation 600-200.

4.  The applicant’s contention that he has been denied an opportunity to collect retired pay at age 60 is not true.  He is currently 51 years of age.  He has 9 years to earn 2 creditable years of service.  If he meets the Army procurement medical fitness standards, including weight, he can enlist as prior service to earn those 2 years.

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

____eb__  ___tap __  ___klw __  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR2000040505	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000427	
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.	135.02	
2.	110.03	
3.		
4.		
5.		
6.