MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           15 March 2001           
	DOCKET NUMBER:   AR2000045584

	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	
	Ms. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Mr. Ernest M. Willcher		Chairperson	
	Mr. Richard T. Dunbar		Member	
	Mr. Thomas E. O’Shaughnessy		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:  In effect, reinstatement in the Army Reserve (USAR).

APPLICANT STATES:  In effect, that he was improperly discharged (sic) from the USAR for failure to maintain height and weight standards, for failing the Army Physical Fitness Test (APFT) on two occasions since October 1997 and for forging three noncommissioned officers evaluation reports dated June 1998, July 1999 and December 1999.  In support of his application, he submits a letter of explanation dated 26 July 2000 with three exhibits (these exhibits are described in his letter of explanation) and approximately 21 self authored letters with allegations of prejudice, harassment, racial discrimination and a multimillion dollar law suit against the United States Army.  He also contends that he was a reservist for 17 years. 

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

The applicant’s records were requested from the National Records Center in St. Louis, Missouri.  However, his Official Military Personnel File contains very limited information.  Therefore, this review is based on records obtained from alternate sources and the documents provided with the applicant's application.  Records show that upon the applicant’s reenlistment in the USAR on 4 May 1996 he had  served 11 years, 11 months and 5 days of inactive military service and 11 months and 22 days of active military service, for a total of 12 years, 
10 months and 27 days. 

The applicant was employed as a Civil Service employee in the Military Technician Program and a member of a Troop Program Unit (TPU) in the USAR.

On 21 February 1999, as a member of the USAR, the applicant was flagged for APFT failure and placed in the Weight Control Program. 

The applicant’s NCO Evaluation Report covering the period August 1998 through July 1999 shows that he failed a APFT in May 1999.

A memorandum, dated 7 July 1999, from the 695th Corps Support Battalion to the Commander, 77th Regional Support Command states “[the applicant] has been placed on the Army Overweight Program and has failed to make progress”.

On 7 August 1999, the applicant was issued a temporary medical profile which prohibited him from performing the two-mile run portion of the APFT.  This profile did not prohibit his performance of an alternate event in lieu of the two-mile run, nor did it preclude him from the push-up and sit-up portion of the test. 

On 8 August 1999, the applicant’s commander initiated a request to bar him from reenlistment.  He cited as the basis for his recommendation, the applicant's three offenses of disrespect to an officer and senior noncommissioned officers; disruptive, threatening, explosive behavior; consumption of alcohol while in a field training environment; failure to comply with Army Weight Control Program; and failure to take a scheduled APFT.  

The applicant’s commander initiated a recommendation to separate him from the USAR under the provisions of Army Regulation 135-178, Chapter 7, paragraph 7-11b (misconduct) and Chapter 14, paragraph 14-2 (weight control failure).  He based his recommendation for separation on the applicant’s disrespectful and belligerent behavior towards military personnel on numerous occasions, insubordination, refusal to obey a direct order and continually refusing to take the APFT after being ordered to take it.  The commander recommended that the applicant be separated with an other than honorable discharge.

After consulting with counsel, the applicant elected to have his case heard by a board of officers.  

The board of officers convened on 6 November 1999 and recommended that the applicant be retained in the USAR.  Upon completion of a legal review, the approval authority approved the board’s recommendation that the applicant be retained in the USAR.  

The applicant’s records contain Orders 00-010-003, dated 10 January 2000, which show the applicant was transferred from the TPU to the USAR Control Group (Reinforcement) effective 23 December 1999, for failure to maintain height and weight standards.

On 28 April 2000, the applicant’s civilian status as a Military Technician was terminated based on his failure to maintain a condition of employment which was assignment to his TPU.

Records show that the applicant has 11 qualifying years for Reserve retirement.

The applicant provided a copy of a letter from the Deputy Chief of Staff for Personnel at Headquarters, United States Army Reserve Command, in Fort McPherson, Georgia, to a Member of Congress, dated 4 January 2000, which states “On a number of occasions, [the applicant] has alleged prejudicial and harassing treatment, which was brought to the attention of the 77th Regional Support Command (RSC).  Because of [the applicant’s] status as a Military Technician (MT), his allegations were investigated from both military and civilian personnel perspectives by the 77th Regional Support Command’s Civilian Personnel Office (CPO), Inspector General’s Office, and Equal Opportunity Office, as well as the American Federation of Government Employees Local 2739 and [the applicant’s] chain of command.  All agencies determined that [the applicant’s] allegations of prejudice and harassment could not be substantiated”. 
Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) governs the policy and procedures for assigning, attaching, removing, and transferring USAR soldiers.  Paragraph 4-16 (Involuntary reassignment for failure to maintain Army body fat standards) of this regulation, provides that a soldier will be reassigned to the Individual Ready Reserve (IRR) for failure to meet the Army body fat standards per Army Regulation 600-9 when it is determined the soldier is not qualified for further troop program unit or individual mobilization augmentee service and meets all of the following conditions:  (1) has completed initial entry training and been awarded a military occupational specialty and is not within
3 months of expiration term of service; (2) is not diagnosed with a medical condition that precludes or interferes with weight control; and (3) the soldier fails to meet the body fat standards per Army Regulation 600-9 and the sole reason for the reassignment to the IRR is failure to meet those standards.  

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

1.  The Board considered the applicant’s contention that he was improperly transferred from the TPU to the USAR Control Group (Reinforcement) for failure to maintain height and weight standards.  However, evidence of record shows that the applicant was a weight control failure. 

2.  The applicant’s contentions that he was improperly discharged from the USAR for failing the APFT on two occasions and for forging three NCO evaluation reports were also noted by the Board.  However, evidence of record shows that the applicant was transferred from the TPU to the USAR Control Group (Reinforcement) for failure to maintain height and weight standards, not for failing the APFT or  forgery.  

3.  The applicant’s administrative transfer was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  Therefore, the applicant is not entitled to the relief requested.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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

EMW___  RTD_____  TEO____  DENY APPLICATION

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

INDEX

CASE ID	AR2000045584	
SUFFIX		
RECON		
DATE BOARDED	20010315	
TYPE OF DISCHARGE		
DATE OF DISCHARGE	19991223	
DISCHARGE AUTHORITY	Army Regulation 140-10	
DISCHARGE REASON	Failure to maintain height and weight standards	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.0300	
2.		
3.		
4.		
5.		
6.