RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            13 JANUARY 2004                  
	DOCKET NUMBER:   AR2003088078

	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	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Ms. Lana E. McGlynn		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. Patrick H. McGann, 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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests, in effect, that his 1983 separation program designator (SPD) and RE (reenlistment eligibility) codes be changed as they may impact on service in the National Guard.  He also asks that the reason for his 1983 separation, unsatisfactory performance, be changed and that he be issued a new Department of Defense Form 256A with the correct spelling of the word “sergeant.”

2.  The applicant states, in a self-authored statement, that based on his service record his discharge should show that he was separated honorably and not for unsatisfactory performance.  He states that he was awarded four Army Good Conduct Medals, and several service ribbons, in addition to graduating from noncommissioned officer education system courses.  He states that on his last evaluation report he was recommended for first sergeant school and immediate promotion.

3.  The applicant states that at the time of his discharge, his unit commander decided to make an example out of him for not complying with the Army's weight control standards.  He states that he was being discharged because he had not lost weight as his commander had ordered.  The applicant maintains that the premise for his discharge was "ridiculous and no different than ordering someone to change race."  He states that he never received medical counseling, transfer, or medical assistance, and that proper examinations were never performed and that alternatives, including the availability of legal counsel were not afforded him.

4.  He states that his weight, although not in compliance with Army Regulation (AR) 600-9, had significant hereditary factors and may have even included diabetes, which he states was prevalent in his family. 

5.  The applicant states that he served his country during the Vietnam and Cold War Eras and did so in an exemplary manner.  He states that it would be in the best interest of the United States military to correctly characterize the years of his life which he volunteered to the service of his country.  He states that "medical knowledge gained by the scientific/medical communities since the early adaptation of AR 600-9 should adequately demonstrate the absurdity of ordering someone to loose [sic] weight and then discharging them for not following the order of a commanding officer."  He states that his discharge is clearly not supported by the facts and that alcoholics and drug addicts were given more consideration and rehabilitation assistance then was afforded to him.

6.  The applicant provides, in addition to his self-authored statement, a copy of his final performance evaluation and a copy of his official photograph, which had been forwarded to a promotion selection board.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an injustice which occurred on 
1 October 1983.  The application submitted in this case is dated 5 March 2003.  

2.  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.  This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  Records available to the Board indicate the applicant entered active duty in June 1969 and served continuously via a series of reenlistment actions until he was honorably discharged on 1 October 1983, under the provisions of Army Regulation 635-200, Chapter 13, for failing to meet the Army's weight control standards.

4.  During the applicant's more than 13 years of active military service, he served four tours of duty overseas, three in Germany and one in Korea.  He held a variety of duty positions, including several leadership positions, at various air defense artillery elements overseas and at Fort Bliss, Texas.  He attained the rank of staff sergeant in September 1976 and successfully completed the basic leadership course and the advanced noncommissioned officer course.  His awards included four awards of the Army Good Conduct Medal, the Army Service Ribbon, and two Overseas Service Ribbons.  His performance evaluation reports were all complimentary.  His final performance evaluation, rendered in June 1983, noted that the applicant was not in compliance with the Army's weight standards, but did recommend the applicant be promoted to pay grade E-7 and be sent to first sergeant training.

5.  Service medical records available to the Board indicate that the applicant was referred to a clinic for weight control evaluation in April 1982 while the applicant was serving in Germany.  At the time of that evaluation, the applicant's weight was at 254 pounds.  It was determined that he needed to lose 34 pounds.

6.  On 7 June 1982 the applicant was seen by medical officials for flu like symptoms.  His weight, during that medical visit was recorded at 237 pounds.  The photograph submitted in support of the applicant's petition was taken in August 1982.

7.  By October 1982 the applicant’s weight was down to 227 pounds and he was removed from the weight control program.  The October 1982 medical evaluation noted that the applicant had been in the program since April 1982.  
8.  In May 1983, while still assigned to Germany, the applicant was again entered into the Army's weight control program.  The enrollment document noted that at 250 pounds, the applicant exceeded his weight allowance by 46 pounds and a medical official indicated that he exceeded the authorize body fat standard.  The medical official determined that the applicant was fit to participate in a weight control/physical exercise program and that his overweight condition was not due to a medical disorder.  The applicant was advised to lose 11 pounds over the next 6 months, based on his body type and body fat content.

9.  In July 1983 the applicant signed a statement indicating that he was not in compliance with Army Regulation 600-9 and that on two occasions he received professional dietary counseling and felt that further counseling would be counterproductive.  He indicated that a discharge would be appropriate.  

10.  On 1 August 1983 the applicant's unit commander counseled the applicant concerning his weight and noted that he had gained 16 pounds and that his weight now stood at 264 pounds and as such, separation action would be initiated.  The applicant acknowledged receipt of the counseling statement and made no statement in his own behalf.

11.  On 17 August 1983 the applicant's unit commander notified the applicant that he was initiating actions to administratively separate the applicant from active duty under the provisions of Army Regulation 635-200, Chapter 13.  The commander cited that applicant's failure to achieve his "maximum allowable weight for your height" as the basis for the separation.

12.  The applicant acknowledged receipt of the proposed separation and consulted with legal counsel.  He waived his entitlement to have his case heard by a board of officers and to appear personally before such a board.  He did, however, submit a statement in his own behalf.

13.  In his statement he indicated that a discharge was appropriate and that he had resigned himself to leaving the Army and to establish a new life for himself and his family.  He indicated that he had served honorably but that he would not alter his life-style and maintained that the "change to the regulations and increased emphasis on the 'slim is in' approach to doing things is so lopsided as to be ridiculous."  

14.  The commander's recommendation was approved and on 1 October 1983 the applicant was honorably discharged under the provisions of Army Regulation 635-200, Chapter 13.  Item 28 (narrative reason for separation) on his Department of Defense Form 214 (Certificate of Release or Discharge from Active Duty) reflects "unsatisfactory performance."  His separation code (item 26) is recorded as JHJ and his RE code (item 27) as RE-3.

15.  The honorable discharge certificate (Department of Defense Form 256A), contained in the applicant's file, does contain a typographical error in the spelling of "sergeant." 

16.  Army Regulation 600-9 (The Army Weight Control Program), then in effect, stated that Soldiers who were reenrolled in a weight control program after 12 months, but within 36 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 overweight condition, will be allowed 90 days to meet the weight control standards.  Enlisted Soldiers, not in an entry level status, who fail to meet the maximum allowable weight or body fat standard after that period will be subject to separation from the Army under the provisions of Army Regulation 635-200, Chapter 13 (Unsatisfactory Performance).

17.  Chapter 13 was also utilized to discharge enlisted Soldiers who, in the commander’s judgment, would not develop sufficiently to participate satisfactorily in further training, the seriousness of the circumstances was such that the member’s retention would have an adverse impact on military discipline, good order, and moral, or one who would be a disruptive influence in present or future assignments.

18.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the Department of Defense Form 214.  In pertinent part, it directs that the regulatory authority authorizing the separation will be entered in item number 25 of the Department of Defense Form 214.  Item number 28 will contain the narrative reason for separation, as shown in Army Regulation 635-5-1 based on the regulatory authority.

19.  Army Regulation 635-5-1 (Separation Program Designators) prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  It indicates that “unsatisfactory performance” was the appropriate narrative reason for discharge when the authority is "AR 635-200, Chap 13” and that JHJ was the appropriate SPD code. RE-3 was the appropriate RE code associated with individuals with an SPD code of JHJ.

20.  Today enlisted Soldiers who do fail to comply with the Army’s weight control program are administratively separated under the provisions of Army Regulation 635-200, Chapter 18 (Failure to Meet Body Fat Standards) and item 28 (narrative reason for separation) is recorded as “weight control failure.”  The SPD code is now JCR but the RE code is still RE-3. 

22.  Army Regulation 635-5-1 states that SPD codes are three-character alphabetic combinations, which identify reasons for, and types of separation from active duty.  The primary purpose of SPD codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of DOD (Department of Defense) and the military services to assist in the collection and analysis of separation data.  This analysis may, in turn, influence changes in separation policy.  SPD codes are not intended to stigmatize an individual in any manner.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation as a result of his failure to meet the Army’s weight control standards was appropriate.  His contention that he was not afforded legal or medical counseling and assistance, and that proper examinations were not done is without foundation.  The evidence clearly indicates that the applicant was seen by medical personnel during each phase of his weight control programs and consulted with legal counsel prior to being administratively separated. 

2.  The evidence also shows that the applicant himself admitted in a July 1983 statement that he received professional dietary counseling, but that additional counseling would be counterproductive.

3.  The applicant’s duty performance and conduct was commendatory, as evidenced by his performance evaluation reports, completion of military education courses, and award of multiple awards of the Army Good Conduct Medal.  His only shortfall was in the area of weight control and for that reason alone, he was discharged from the Army.

4.  The evidence confirms that the narrative reason for his separation, SPD and RE codes were appropriate at the time the applicant was discharged.

5.  However, it is noted that since the applicant’s discharge in 1983 the regulatory authority, under which individuals are separated for weight control failure, has changed from Chapter 13 (Unsatisfactory Performance) to its own chapter, Chapter 18 (Failure to Meet Body Fat Standards), and the narrative reason for separation has changed to more accurately reflect the basis for the Soldier’s separation.

6.  The use of the term “unsatisfactory performance” on a separation document does carry with it a negative connotation and could create an injustice for Soldiers discharged solely because of their weight condition.  The fact the Army now clearly defines the basis for the separation of Soldiers who fail to comply with the Army’s weight control program supports this conclusion.

7.  While the applicant’s separation for weight control failure was appropriate, and the entries on his separation document were correct at the time the document was prepared, the narrative reason for his separation may unfairly stigmatize the applicant and does not accurately reflect the basis for his separation.  As such, it would be appropriate in the interest of justice and equity to change item 28 on the applicant’s 1983 separation document to show “weight control failure.”

8.  Although it may be in the interest of justice and equity to more accurately reflect the reason for the applicant’s separation, changing the SPD code would serve no purpose.  The SPD code was accurate at the time of preparation and has served the data collection purpose for which it was intended.

9.  The applicant is advised that although his RE-3 code was properly assigned, this does not mean that he is totally disqualified from enlistment in the Reserve Components.  The disqualification upon which the RE-3 code assignment was based may be waived for reenlistment.  The applicant is advised that if he desires to enlist, he should contact a local recruiter who can best advise him on his eligibility for enlistment.  Those individuals can best advise a former servicemember as to the needs of the service at the time and may process enlistment waivers for RE codes.

10.  It is also noted that it would be appropriate to correct the spelling of the word “sergeant” on his Department of Defense Form 256A (Honorable Discharge Certificate).  

BOARD VOTE:

__LEM __  ___RWA_  __PHM__  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief and to excuse failure to timely file.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

a.  changing the narrative reason for separation in item 28 on his 1983 separation document to read “weight control failure” vice “unsatisfactory performance;” and
b.  by issuing a new Department of Defense Form 256A with the correct spelling of “sergeant.”

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to changing his SPD or RE codes.  

		____Lana E. McGlynn_____
		        CHAIRPERSON

INDEX

CASE ID	AR2003088078	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040113	
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.	110.00	
2.		
3.		
4.		
5.		
6.