PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           01 AUGUST 02                  
	DOCKET NUMBER:   AR2002069746

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Ms. Paula Mokulis		Member	
	Mr. Donald P. Hupman, Jr.		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  In effect, the applicant requests that the order discharging her from the Army Reserve be revoked, with the restoration of all rights, privileges, and property, to include antedating her enlistment contract in the Army Reserve. 

3.  The applicant states that the Board should overturn the denial of her request for an antedated enlistment contract.  She states that Reserve membership is a requirement for her to retain her technician position, that it has always been her intention to continue her military service, and to suggest otherwise is nonsense.  She has been a soldier for 23 years and has consistently demonstrated her dedication and loyalty to the Army, serving 16 years as a military technician.  She encloses her past NCO evaluation reports and civilian appraisals.  She also encloses letters of support from 24 individuals - officers, NCOs, and civilians.
The applicant provides a chronology of events leading to her discharge, and her comments thereto.  Her comments for the most part are geared to the enclosures she furnishes with her application.

•	She states that she was correctly enlisted in the Army Reserve from 1992 to 1997.  There was a command-wide problem concerning weight control. Her command had no established program to assist soldiers.

•	She signed an enlistment extension under the provisions of Army Regulation 140-111, Table 3-1, Rule K, based on the advice of the Retention NCO.  The adjutant was unclear concerning Rule K, and accepted his advice.  She later found out that Rule K stipulated that she had to transfer to the Retired Reserve upon reaching 20 years of service, which was not her intention – to do so would cause her to lose her full time employment.  She was unaware of the implications of Rule K.  She was then advised, incorrectly, that she could extend her reenlistment under Rule M.  That rule is used when adjudication is pending.  The 88th Regional Support Command (RSC) voided that contract.  Contacting the Army Reserve Personnel Command at St. Louis, she was advised that it was not unusual for Rule K to be misunderstood, and that the 88th RSC should correct the original extension under Rule K.  The 88th RSC did not correct that extension, and she was not placed on the [weight control] program at that time.  It was decided, however, that she should extend under Rule O – the rule allowing an extension for a specific period of time, not to exceed 12 months, to allow a soldier to meet Army weight standards.

•	
On 6 January 2000 the 88th RSC commanding general directed that a commander’s inquiry be conducted into her enlistment extension and processing and also directed that she not drill because her contract was invalid.  Clearly, because she was not in a drill status, the provisions of Rule O should not apply to her and should not count against her.

•	On 26 April 2000 the Army Reserve Command responded to an inquiry from a Member of Congress (MC) on her behalf, informing the MC that an investigation under the provisions of Army Regulation 15-6 was conducted.  She stated the investigation was not conducted.  She stated that the response noted the irregularities in the weight control program. 

•	On 11 May 2000 she asked a lieutenant colonel of the 88th about her status and was informed that the investigation was continuing, and that she would be allowed to drill until the investigation is completed.  Here again, Rule K was negated.

•	On 24 May 2000 the Commanding General of the 88th RSC gave her until December 2000 to meet weight standards, meeting the criteria of Rule O.  Clearly, the CG was telling her that if she met weight standards, he would reenlist her.  The memorandum also afforded her the opportunity to make up all missed drills.  She set about to make the weight standards and to pass the Army Physical Fitness Test (APFT).  On 8 June 2000 her unit notified her that she was placed on the weight control program, allowing her 6 months to meet the weight standards, which would allow her to reenlist in December 2000.  Again, there was no guidance from the 88th RSC.  She should not have been penalized for the time that she was not directed to drill.  The nutritional counseling at the 323d was not durable [doable?].  She was flagged effective on 13 June 2000.  On 1 September 2000 she was hospitalized; however, up until that time she was making steady progress on her weight loss.  The hospitalization and her doctor’s order prevented her from continuing on the weight control program.  It still seemed that the [weight control] program was for her and her only.  She knew that she had been overweight for some time.  The unit had no weight control program and still does not.    

•	She refers to e-mail messages between the 88th RSC and her unit, the 645th Area Support Group (ASG), which discussed both her weight and her contract.  She states that she was not the only person who felt that the Staff Judge Advocate (SJA) was out to get her.  No separation procedures were started on her, and there was always conflicting guidance.

•	She refers to another E-mail message, which she says indicates that the 88th RSC commander can direct retention when the defect no longer existed, based on a recommendation from her commander.

•	She refers to a 29 December 2000 memorandum from her unit to the     88th RSC in which her unit requested approval to extend her enlistment from 2 January 2001 to 2 May 2001, stating that she did not request her unit to do this, but the unit did it in fairness to her because she had been making progress in the weight control program.  She quotes from Army Regulation 600-9, which states that personnel will be continued in a weight control program after the initial 6-month period if making satisfactory progress toward weight loss.  She states that request for extension was never approved.  

•	She states that a 29 December 2000 e-mail forwarding a request for extension of her ETS was not received until January, and the 88th RSC did not consider that she had only been on the program for 6 months, but included the time she was not allowed to drill.  They used Rule M to allow an extension, but that rule only allowed an extension of 90 days pending adjudication.  She should have been extended under Rule O.  She was directed to get a medical evaluation; however, the 88th RSC personnel section knew that the SJA would not concur with the decision, and refused to honor the commanding general’s decision to negate the extension under Rule M and to approve an extension under Rule O.  Faced with no action on the request for a 120 day extension, the unit extended her for 60 days to give the 88th time to make a decision.  She states that the 88th RSC retention officer advised to extend her for 90 days and to get a medical evaluation.  Her doctor determined that her health did prevent her from losing weight and advised a 90 day extension.

•	She comments on the process she underwent when evaluated at the    323d General Hospital.  She states that a medical evaluation determined that her being in the hospital had delayed her progress, recommending a 90 day extension.  She states that she was losing weight, and 90 days from 3 January 2001 would be difficult, but she believed that she could meet the standard.  She states that her unit extended her enlistment until 2 April 2001, and that extension together with the first 60 day extension met the guidance provided by the 88th RSC.    

•	
She states that a 23 March 2001 88th RSC SJA memorandum was a surprise, indicating that the SJA, which had been adamant against her reenlistment, appeared to say that if she met weight standards she could reenlist.  An SJA lieutenant confirmed that she had until 2 April 2001 to meet weight standards, but later denied making the statement and stated that the Deputy SJA, a lieutenant colonel, should not have sent the memorandum, and that it had been withdrawn. 

•	She refers to a phone conversation between the Supervisory Staff Assistant (SSA) of the 645th ASG and a lieutenant in the 88th SJA office, in which the lieutenant indicated to the SSA that the applicant had until         2 April 2001 to meet the weight standards.  The applicant stated that it seemed that it was all right for him to change his mind, but she had to be punished for something that she worked hard correcting.

•	She states that she met the weight standards on 2 April 2001 and attaches a body fat worksheet with her application.  She states that the group commander had informed the 88th RSC commander that she met the standards and she could reenlist.  The 88th RSC commander, however, requested that information be provided the SJA.

•	She states that the SJA informed her unit not to reenlist her, claiming that her 3 January 2001 and 1 March 2001 extensions were not legal.  She states that the SJA ignored the fact that she had been hospitalized in September, preventing her from continuing her weight loss, ignored the provisions of the regulation that provided for extension on the weight control program, and ignored the statement provided by the Army doctor that she be given 90 additional days to meet the standard.  At that time the 88th RSC Inspector General became involved, and he called the unit to advise that a conference was being held to review her situation; however, there was no one to speak in her behalf.  For months she had been told that she could reenlist if she met the weight standards.

•	She states that she was directed to discontinue any military action.  She was not discharged until 24 April 2001.  The decision to not allow her to reenlist was unfair.  She states, however, that she was not barred from reenlisting.

•	She refers to an e-mail from an official in the DCSPER (Deputy Chief of Staff for Personnel) Army Reserve Command (USARC) office to the Office 

of the Chief, Army Reserve (OCAR).  She states that never in her            23 years of military service, did she think that she would be mistreated so unfairly, that it seemed from the start that she would be the scapegoat for system errors and made an example of.  Again, USARC indicated Rule K was negated and she should have been allowed to reenlist; however, the rule changed in her case.  She states that USARC believed that this Board would turn the decision [to not reenlist her] around.    

•	She states that she requested an antedated contract through her chain of command, and subsequent to that she requested assistance from a MC.  Her case was sent to OCAR and reviewed at USARC.  OCAR forwarded her case to AR-PERSCOM and the 88th RSC forwarded the memorandum to AR-PERSCOM recommending approval of the antedated reenlistment contract.  She refers to the 14 January 2002 memorandum from the AR-PERSCOM denying her request for an antedated reenlistment contract, stating that the decision completely ignored the 88th RSC commander’s intent to give her time to lose weight.  She met the standard that he imposed.

•	She states that AR-PERSCOM did not actually review all the facts, but relied on the information provided by the 88th RSC SJA as indicated in the 22 January 2002 e-mail between the 88th RSC Personnel and the DCSPER office at USARC. 

•	She states that she received written notice to remove her from her civilian employment.  She was aware of the condition of her job, and would never have intentionally signed the extension [if it would have resulted in her discharge].  She was informed that the rule under which she was extending was for weight control, not a mandatory removal.

•	She requests that the Board review her case.  She has been through this ordeal for two years.  It was never her intention to retire, and she did all she could to correct her situation.  She failed by not taking care of herself, but the system failed for not helping her.

4.  The applicant’s military records show that she enlisted in the Army Reserve for three years on 4 October 1977.  She was discharged from that component upon her enlistment in the Regular Army for three years on 1 February 1978.  On 5 February 1979 she was discharged because of a hardship.  An evaluation report for the one year period ending in August 1982 shows that she was a 

member of a unit of the 70th Division (Training), a Reserve unit located in Pontiac, Michigan.  Her records show that she enlisted in the Army Reserve for six years on 20 February 1983, and extended her enlistment for three years on   7 January 1986.  On 3 January 1992 she again enlisted in the Army Reserve – for 6 years. 

•	On 9 November 1997 the applicant extended her 3 January 1992 enlistment agreement for two years under the provisions of Army Regulation 140-111, Table 3-1, Rule K.  A lieutenant certified the oath of extension.

•	The applicant’s NCO evaluation reports show the following information concerning her height/weight –

Period of NCOER  Height/Weight   Remarks by rater   

8810 – 8909             63/175  No      Making progress in meeting standard
8910 – 9009             64/175  No      Making good progress 
9011 – 9108             65/172  Yes     Within body fat standards
9109 – 9209             64/168  Yes     Within body fat standards
9210 – 9309             64/196  No       Showing progress.  Under doctor’s 
                                                                         care
9310 – 9409             64/180  No       Working to improve.  Has improved.
9410 – 9509	            63/226  No       Under physician’s care for weight                                                                      control 
9610 – 9709              63/218  No       Progressing

0006 – 0103              63/223  No       Under physician’s care for weight                                                                       control.  Has made significant
                                                                           progress in weight and body fat
                                                                           reduction

•	On 16 August 1997 the commander of the 5064th Army Garrison, in a memorandum to all battalion commanders noted that there was a command-wide problem in the area of weight control, and that not all individuals were weighed/taped, and the program was not enforced.  He stated that he wanted all units to conduct a weigh-in during their October 1997 drill.

•	On 15 December 1999 the applicant extended her 3 January 1992 enlistment agreement for three months under the provisions of Army Regulation 140-111, Table 3-1, Rule M.  The word “VOID” is written across the face of that enlistment extension agreement. 

•	On 20 December 1999 the applicant extended her 3 January 1992 enlistment agreement for one year under the provisions of Army Regulation 140-111, Table 3-1, Rule O.

•	On 6 January 2000 the Commanding General, 88th RSC, directed that the 645th Area Support Group commander conduct an inquiry into the applicant’s enlistment extension processing and eligibility [for enlistment].  He also directed that copies of her evaluation reports since 1995 be provided to determine how long she had not met the height and weight standards.  He stated that the applicant did not currently have a valid enlistment or extension to her enlistment contract and was not eligible to attend drill for pay, retirement points, or any other compensation.

•	In a 26 April 2000 letter to a Member of Congress (MC), the USARC stated that the applicant was a dual status technician whose loss of her Selected Reserve membership would mean loss of her civilian employment.  The USARC stated that the applicant had a history of being overweight since 1995.  She did not meet the height and weight standards of Army Regulation 600-9 between September 1995 and June 1999.  The USARC also stated that the applicant’s command failed to take proper action in accordance with the regulation, that she was not weighed monthly, did not receive nutrition counseling, and was not referred to health care professionals when she did not lose weight.  She extended her enlistment in November 1997 under the provisions of Army Regulation 140-111, Table 3-1, Rule K, which states that soldiers with over 18 years of creditable service for retirement pay, but less than 20, may extend their enlistment, but must be removed from an active status on the first day of the month following the month in which completing 20 years of qualifying service.  The USARC stated that the applicant should have been removed from an active status on 1 May 1998.  The USARC stated that for unclear reasons she was allowed to remain in an active status, and allowed to again extend her enlistment on 20 December 1999 under Rule O, which allows a 12-month extension for soldiers on a weight control program who were making satisfactory progress.  Since the applicant’s command was not enforcing the provisions of the Army weight control program as it pertained to her, it could not be determined if Rule O was used legitimately.  The USARC stated that an investigation was being conducted, and that the applicant would be advised of the results.   

•	
In an 11 May 2000 e-mail to the applicant, an official in the 88th RSC Personnel Division informed the applicant that a Judge Advocate General (JAG) Corps lieutenant of the 88th RSC told him that she would be allowed to drill until the investigation was completed.  He stated that USARC said that we [88th RSC] must honor the extended contract, but the JAG lieutenant seemed convinced that we should not. 

•	On 24 May 2000 the 88th RSC commanding general informed the commander of the 645th ASG of the results of the inquiry into the applicant’s extension processing.  He stated that the applicant should have been removed from an active status on 1 May 1998, under the provisions of Rule K, that the applicant’s unit failed to do so, and further complicated the issue by allowing the applicant to extend under Rule O in December 1999.  He stated that the extension of December 1999 was erroneous because the applicant was not in compliance with Army Regulation 600-9 because of her failure to meet weight standards; however, since there were so many irregularities with the 645th ASG weight control program, he was directing that the 645th comply with the requirements of Army Regulation 600-9 and afford her all avenues required by that regulation.  He stated that the applicant would be weighed monthly, attend weight reduction/nutrition counseling, and required to make satisfactory progress. He stated that the applicant would be afforded the opportunity to attend drill and make up all drills missed.  He stated that the 645th would ensure that the applicant was in compliance with the provisions of Army Regulation 600-9 and Army Regulation 140-111, and that she was not extended or reenlisted past her current ETS (Expiration of Term of Service) of December 2000 unless she was in compliance.  He stated that the 645th would ensure that the applicant understood that if she did not make satisfactory progress in two consecutive months action would be taken in accordance with Army Regulation 600-9, paragraph 21e(2)(b), and that she was subject to separation.

•	On 8 June 2000 the 645th placed the applicant on the weight control program, stating that she was required to be weighed and taped every month starting in June 2000.  The memorandum directing that action was signed by the 645th Supervisory Staff Administrator (SSA).  

•	On 21 September 2000 the 645th SSA recommended to the 88th RSC that based on the advice of the USARC (Army Reserve Command) [that even though the applicant was on the weight control program, the command still needed to address the erroneous extension], he recommended that separation action continue simultaneously with the action placing the applicant on the weight control program, and that if she met the weight standards in December, that the erroneous extension be overturned and the applicant be retained, which might require an extension to the suspense date of 1 December 2000 to separate her.  He recommended an extension due to her current illness, which would also affect the extension they requested on separation.

•	In a 29 December 2000 memorandum to the commander of the 88th RSC, the 645th commander requested approval to extend the enlistment of the applicant from 2 January 2001 to 2 May 2001, stating that the applicant had been under a doctor’s care since 1 September 2000 for angina, that she was being treated with medication, and was advised by her doctor against rapid weight loss and a severely restricted diet.  He stated that despite that, she had made significant progress since June, reducing her weight 17 pounds and body fat content (9.38 percent from 47.19 percent to 37.18 percent), and that the standard was 36 percent.

•	In a 29 December 2000 e-mail to an official of the 88th RSC Personnel Division the 645th SSA attached a request for extension of enlistment for the applicant, stating that her ETS was 2 January 2001, and that if the commanding general agreed to grant her an extension they had until        3 January 2001 to effect the extension.  The official in the 88th RSC stated that he had discussed the issue [with two officers] who recommended that she be extended under Rule M and directed to get a medical evaluation, and that the medical evaluation would determine if she had an underlying reason for not making weight.  He stated that the regulation provided for an extension up to 90 days.  In an aside to the command executive officer, to whom he furnished a copy of the e-mail, the 88th RSC Personnel Division official stated that he knew the SJA would nonconcur with that action, but since she would ETS on 2 January 2001, they had little reaction time, and he requested a meeting.   

•	On 3 January 2001 the applicant extended her 3 January 1992 enlistment agreement for two months under the provisions of Army Regulation     140-111, Table 3-1, Rule M.

•	In a 26 January 2001 memorandum to the commander of the 645th, the Commander of the 323d Combat Support Hospital in Southfield, Michigan, stated that based on a medical evaluation of the applicant, he recommended that she be extended 90 days to be evaluated by a cardiologist. 

•	On 1 March 2001 the applicant extended her 3 January 1992 enlistment agreement for one month under the provisions of Army Regulation       140-111, Table 3-1, Rule M.  Her new ETS was 2 April 2001.

•	In a 23 March 2001 memorandum to the 645th commander, the 88th RSC Deputy Staff Judge Advocate stated that the applicant’s situation had been marked by repeated violations of law and regulation, that the applicant was ineligible to extend her enlistment further, and that she was not eligible to reenlist, extend, or otherwise continue her military service unless and until she met the Army weight standard.  He stated that the office of the SJA was in receipt of an e-mail message sent by the          88th RSC military personnel officer discussing extending the applicant under Rule M.  That rule allowed a soldier to extend if they have a disqualification which was under adjudication, and that rule did not apply to the applicant’s case.  He stated that extending the applicant was contrary to the guidance provided by the USARC SJA, who opined that the applicant’s separation was mandatory under her previous Rule K extension.  He stated that receipt of that information was acknowledged by the former commander of the 645th, in response to a memorandum directing that the 645th initiate separation action against the applicant; however, instead of complying, the 645th SSA extended her again, twice.  He stated that when the applicant was extended on 3 January 2001 it was with full knowledge by her and the principals involved that she was disqualified from extending.  He stated that because she was both a senior NCO and a senior military technician, it was not credible for her to claim that she was unaware that she was disqualified from extending her enlistment; consequently, there was evidence to show that she was in violation of the UCMJ pertaining to fraudulent enlistment.  He stated that there was sufficient evidence to show that the SSA violated federal law when he certified her oath of extension on 3 January 2001 and on 1 March 2001.  He also stated that federal employment statutes were also implicated, that it was a federal crime for a federal employee to grant any preference or advantage not authorized by law to any employee or applicant for employment for the purpose of improving or injuring the prospects of any particular person for employment.  On 30 January 2001 the 645th SSA stated that he received the above cited memorandum, which stated that the applicant could not reenlist until she met Army weight standards, but did not stipulate when that should happen.  He stated that he phoned a lieutenant [in the SJA office] who stated that she had until 2 April 2001 to meet standards, and that he [the SSA] noted that conversation on the memorandum.  He stated that the lieutenant subsequently denied making the statement, and that [the lieutenant] said the memorandum had been distributed in error.

•	A 2 April 2001 body fat worksheet shows that the applicant was in compliance with Army weight standards with a body fat content of 35.57 percent [authorized body fat is 36 percent].
•	In an 11 April 2001 letter to the 88th RSC commanding general, an individual stated that he was the adjutant of the 5064th Army Garrison Support Unit who certified the applicant’s enlistment extension.  He stated that he understood that the option “O” should have been the correct option selection, not option “K” which was selected.  He stated that there were no guidelines explaining the correct option, and no intentional deception on anyone’s part for completing the form.  He stated that at that time the subject matter expert instructed him that option “K” covered weight control, and that they had no idea that option “K” would result in her dismissal from the Army Reserve.  He indicated that he would do whatever he could to rectify the situation.

•	On 24 April 2001 the applicant was discharged from the Army Reserve.

•	In a 28 August 2001 memorandum, the operations officer of the 645th recounted telephone conversations with the 88th RSC JAG Corps lieutenant, who told him that in order for the applicant to reenlist she should have to make the tape.  In another telephone conversation, after the applicant had been taped by the weight control officer, he informed the lieutenant that the results [of the tape] meant that she was eligible to reenlist.  However, he was told that he was not to reenlist the applicant under any circumstances, and that to do so would be disobeying a direct order.  He stated he questioned the decision because he and others were told all along that she could reenlist if she made the weight standards.  He was informed that a meeting would take place and that he and the 645th SSA should stand by for a conference call.  No call came.  He found out that the meeting did take place but did not include their input. 

•	In a 4 June 2001 e-mail to the Office of the Chief, Army Reserve (OCAR), an official of the USARC DCSPER provided a synopsis of the applicant’s case, stating that Rule K should not have been used to extend her enlistment, and that when it was discovered that she had extended under Rule K, the legal office at the 88th RSC stated that she should be discharged.  He told their legal officer that was not appropriate and that the procedures of Army Regulation 135-178, paragraph 9-7 had to be followed.  They chose not to do that.  He stated that when they realized she had been extended a third time (under Rule O), they came back again and wanted to summarily discharge her.  He stated he told them “No,” that they had to follow the erroneous extension procedures in Army Regulation 135-178 or put a bar to reenlistment on her, and that if she did not make weight by the end of the extension, she could then be discharged because of the bar.  He stated that they did neither.  Rather, they reacted to your (OCAR) preliminary e-mail opinion and refused her reenlistment and discharged her.  He stated that he was told that at the end of her extension, when she tried to reenlist, she had made the weight and was eligible, but they went back several years and relied on the Rule K extension and refused her reenlistment even through she was otherwise qualified.  He went on to state that if a soldier was two extensions past an erroneous enlistment [Rule K] and not processed for an erroneous enlistment, the Rule K parameter of absolute discharge was overcome by events.  To discharge someone because of what the system did was not the normal way of doing business and was wrong.  He stated that it was especially true, when he gave them two sets of guidance and they refused to follow them.  They did not do what they were told.  She should have been allowed to reenlist when she met the criteria.  He stated that he had discussed this and would like OCAR to review this again and give the Army Reserve Personnel Command (AR-PERSCOM) the authority to do an antedated reenlistment which would negate the discharge.  He stated that he would provide something formal that has been reviewed by their legal staff. 

•	On 7 September 2001 the applicant requested approval for an antedated reenlistment contract.  The commander of the 645th forwarded her request to the commander of the 88th RSC, recommending that her request be approved.

•	On 17 October 2001 the 88th RSC forwarded the request to                   AR-PERSCOM, recommending approval.  That command stated that it had initially disapproved her request for reenlistment on 3 April 2001 based on guidance from the USARC and the SJA.  The 88th RSC stated that the USARC SJA determined that the applicant’s extensions were erroneous and directed that she be processed under Army Regulation 135-178, paragraph 9-7.  It stated that on 21 August 2000 and 16 October 2000 the 88th RSC directed the 645th to initiate separation proceedings in accordance with those provisions.  The unit did not do so.  The 88th RSC stated that recent verbal guidance from the USARC DCSPER stated that although the applicant’s extension was done under the wrong rule, it should have been corrected when the error was discovered.  The           88th RSC further stated that USARC guidance indicated that the erroneous status was based on the fact that the applicant did not meet the height/weight standards, not the error in the extension rule, causing the RSC to deny her reenlistment.  The 88th RSC states that the separation authority could direct retention when the defect was no longer present, and therefore the applicant should be granted approval to execute an antedated reenlistment contract.  

•	On 14 January 2002 the AR-PERSCOM denied her request to antedate her reenlistment, stating that the applicant did not meet the eligibility requirements of Chapter 2, Army Regulation 140-111, and she was extended by Rule K for 24 months – and the result of that extension was that all other extensions or reenlistments were prohibited.  It went on to state that although the unit stated that the extension done in November 1997 was erroneous and she should have been extended for 12 months under Rule O, at the end of 12 months she still would have been overweight and not eligible to reenlist or extend.  She did not meet height and weight standards until April 2001.  The AR-PERSCOM stated that there was no proof that she would have been in compliance with Army Regulation 600-9, since the 88th RSC provided information that she did not meet the height/weight standards until April 2001.  The AR-PERSCOM directed that discharge orders be issued and forwarded to AR-PERSCOM by 14 March 2002. 

5.  Army Regulation 140-111 prescribes the policies, responsibilities, and procedures for the Army Reserve reenlistment program.  Table 2-1 provides the basic eligibility criteria for reenlistment, and states in pertinent part that a solider who does not meet the body fat standards prescribed by Army Regulation 600-9 is disqualified for reenlistment and that a waiver is not authorized. 

6.  Chapter 3 provides policy and guidance for extending enlistment or reenlistment agreements to meet length of service requirements, and states that when commanders determine that it is in the best interest of the Army Reserve, they may authorize extensions for the reasons and periods outlined in table 3-1.  Extension periods authorized may vary from 1 to 48 months, depending on the specific purpose of the extension.  Normally, only one extension will be authorized.  If subsequent extensions are granted, the combined total of these extensions and all previous extensions of the current agreement will not exceed 4 years.  A soldier, by signing a completed DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) extends the terms of service, benefits, and contractual provisions of the current enlistment or reenlistment agreement.  Table 3-1 provides the authorized reasons and periods of extensions –

-Rule K provides for extension of a soldier who has completed 18 or more years of qualifying service for retired pay, but less than 20, and is ineligible to reenlist.  Unless sooner separated for medical or cause, the soldier may request and will be extended to complete 20 years of qualifying service for retired pay before reaching age 60, or a waiver is granted by AR-PERSCOM.  The soldier may be extended for not more than 3 years if having at least 18, but less than 19 years of qualifying service at ETS; or for not more than 2 years, if having at least 19, but less than 20 years of qualifying service at ETS.  The soldier must be removed from an active status on the first day of the month following the month in which he or she completes 20 years of qualifying service, regardless of the term of the extension.

-Rule M provides for an extension of a period not to exceed 3 months for a soldier who is not eligible for reenlistment; however, the disqualification is under adjudication pending a final determination, or may be waivable, and it is apparent that the soldier’s ETS will occur before adjudication or waiver processing can be finalized.  In extenuating circumstances an additional period of extension may be approved. 

                -Rule O states that a soldier participating in a weight reduction program                  and making satisfactory progress to meet the body fat content                               requirements of Army Regulation 600-9 may be extended by whole                      months for the period required to be in compliance with Army                                Regulation 600-9, but not to exceed 12 months.                         	

7.  Army Regulation 135-178 establishes policies, standards, and procedures governing the administrative separation of enlisted soldiers from the Army Reserve.  Paragraph 9-7 states that a soldier may be discharged on the basis of an erroneous enlistment or extension of enlistment.  An enlistment or extension is erroneous if it would not have occurred had the relevant facts been known the government or had appropriate regulations been followed; it was not the result of fraudulent conduct on the part of the soldier; and the defect is unchanged in material respects.  When it is discovered that a soldier’s reenlistment or extension is erroneous because he or she failed to meet the qualifications for reenlistment or extension, the unit commander will initiate action to retain, discharge, or release the soldier as appropriate.  The unit commander will notify the soldier in writing and forward the case through channels to the proper separation authority.  The separation authority will direct separation in all cases in which the disqualification was nonwaivable.  In an exceptionally meritorious case when in the judgment of the commander having separation authority the retention of the soldier would definitely be in the best interest of the government, direct retention.  The separation authority may also direct retention in those cases in which the disqualification was waivable or the defect is no longer present and retention is deemed to be in the best interest of the government and the individual. 

CONCLUSIONS:

1.  Apparent is the fact that the applicant was overweight from 1988 to 1990, and again from 1992 to 2001.  She was a senior NCO and was aware of the Army’s requirements concerning the weight control program, as she has indicated in her application to this Board, but did little to comply with the provisions of Army Regulation 600-9 concerning the weight control program.  By the same token, however, her unit, the 645th ASG, also apparently did little to ensure her compliance with the Army weight control program as indicated by both the 88th RSC and the USARC.  The applicant herself states that her command had no program to assist soldiers.  

2.  The applicant’s extension of her enlistment on 9 November 1997 for two years under Rule K was erroneous.  However, the applicant and the former adjutant of the 5064th who certified the enlistment extension state that the error was unintentional.  Their argument is accepted.  The Board believes that the applicant, who had to maintain her Selected Reserve status in order to retain her civilian employment as a military technician, would not have executed an extension under Rule K had she known of the ramifications.   

3.  The applicant’s extension under Rule M on 15 December 1999 was erroneous.  That extension was voided.  The applicant’s one year extension on 20 December 1999 under Rule O may well have also been erroneous.  There is no evidence and the applicant has not provided any, to show that she was in a weight reduction program, one of the criteria in order to extend under Rule O.  The 88th RSC commanding general in noting that the applicant should have been removed from an active status on 1 May 1998, also stated that the applicant’s unit complicated the issue by allowing the applicant to extend under Rule O, and that extension was erroneous.   

4.  Nonetheless, the 88th RSC directed that the applicant be placed in the weight control program and that she should not be allowed to extend or reenlist past her December 2000 ETS date unless she was in compliance with the Army weight standards.  However, the applicant apparently was extended until 2 January 2001.  Evidence concerning that extension is not available. 

5.  The applicant was extended on two more occasions, on 3 January 2001 for two months, and on 1 March 2001 for one month, both under Rule M.  Both extensions under that rule were erroneous.  

6.  On 2 April 2001 the applicant was in compliance with Army weight standards.

7.  The applicant’s unit apparently did everything they could to retain the applicant in the Army Reserve and in her military technician job, subsequent to the termination date of her first extension, allowing her to be extended on three separate occasions for dubious reasons.  Her unit extended her in spite of the advice given by the 88th RSC SJA and the information provided by the USARC.  The laudatory remarks contained in her letters of support attest to the fact that  members of her unit and others whom she worked with considered her an outstanding military technician and soldier, notwithstanding her weight problems. Her extensions, though erroneous, may have been the only way that the unit could retain the applicant past her December 2000 ETS in order for her to  continue in the weight control program.  Her medical condition may have dictated that she be extended in that program.  There is, however, no evidence to suggest that she was in violation of the UCMJ concerning fraudulent enlistment; nor evidence to show that her unit intentionally violated the law by certifying her various extensions, as put forth by the 88th RSC Deputy SJA in a 23 March 2001 memorandum.  The evidence suggests that there was some disagreement within the 88th  RSC, and between the 88th RSC and the 645th ASG concerning her status, and that there was confusion within those commands concerning what to do in her case.   

8.  Notwithstanding the decision by the Army Reserve Personnel Command to deny the applicant’s request to antedate her reenlistment, she was permitted to extend, and those extensions were executed with the concurrence and the express approval of her command.  There is no evidence that those extensions, although erroneous, were executed deceitfully or with an attempt to defraud the government, and although the applicant’s case should have been handled differently, the fact remains that she continued her service in the Army Reserve and as a military technician until her ETS date of 2 April 2001, on which date she met the Army weight standards.  She should have been allowed to reenlist.

9.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by: 

     a.  revoking the order discharging her from the Army Reserve on 24 April 2001.  That order is null and void and of no force or effect;

     b.  antedating an enlistment contract for the applicant effective on 3 April 2001; 

     c.  showing that the applicant attended and participated satisfactorily in all scheduled unit training assemblies and that she participated in any annual training conducted from 3 April 2001 to the present time; and

     d.  granting her the requisite retirement points and all pay and allowances for those training assemblies and annual training, if appropriate.	
     
BOARD VOTE:  

__SSA __  __MHM__  __RKS__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Samuel A. Crumpler__
		        CHAIRPERSON

INDEX

CASE ID	AR2002069746	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020801	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	112.00	
2.		
3.		
4.		
5.		
6.