BOARD DATE: 6 July 2017 DOCKET NUMBER: AR20150018610 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ___x_____ ____x___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 6 July 2017 DOCKET NUMBER: AR20150018610 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _____________x____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. BOARD DATE: 6 July 2017 DOCKET NUMBER: AR20150018610 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, correction of item 26 (Separation Code) of her DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 14 January 2014 to show a different, unspecified, and presumably more favorable separation code. 2. The applicant states her DD Form 214 states she was not placed in the Individual Ready Reserve (IRR); however, she was able to get into the U.S. Army Reserve (USAR) based on her USAR contract terms. Her status needs to be corrected in order for her to extend her contract. 3. The applicant provides a copy of her DD Form 214. CONSIDERATION OF EVIDENCE: 1. 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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the USAR on 3 September 2003 for a period of 8 years (6 years in a troop program unit and 2 years in the IRR). She reenlisted in the USAR on 16 December 2009 for a period of 6 years. Her reenlistment contract shows the following comment in the remarks block: I understand that the effective date of my reenlistment is one day following my current ETS [expiration term of service] date of 20091216 [16 December 2009]. Therefore, the effective date is 20091217 [17 December 2009]. I further understand that bonus payments will begin on the effective date. This contract expires on (ETS) 20151216 [16 December 2015]. 3. The applicant enlisted in the Regular Army on 2 June 2011 for a period of 3 years and 20 weeks. 4. On 11 September 2013, the applicant's immediate commander notified the applicant that he was initiating action to discharge her from the service under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 18, due to her failure to meet body fat standards. He cited the fact that she had 3 months of unsatisfactory progress while enrolled in the Army Body Composition Program (ABCP) as the reason for his proposed action. He stated he was recommending an honorable discharge and he advised her of her rights and her possible entitlement to have her case heard by an administrative separation board. On the same date, the applicant acknowledged receipt of the proposed separation action. 5. On 12 September 2013, the applicant's immediate commander recommended her discharge under the provisions of Army Regulation 635-200, chapter 18, for consistent failure to comply with the standards and guidelines of Army Regulation 600-9 (The Army Body Composition Program). 6. On 17 October 2013, the applicant's intermediate commander recommended concurrence with her discharge with an honorable characterization of service. 7. On 17 October 2013, the separation convening authority determined an administrative separation board would be convened to determine whether the applicant should be separated from the Army prior to her ETS date. 8. The applicant's immediate commander notified her again on 30 October 2013 that he was initiating action to discharge her from the service under the provisions of Army Regulation 635-200, chapter 18, due to failure to meet body fat standards. He noted she was removed from the ABCP on or about 27 March 2013. On or about 29 April 2013, she again exceed the allowable body fat percentage and was subsequently reenrolled in the ABCP. Therefore, in accordance with the applicable regulation, he was initiating separation for re-entry into the ABCP within 12 months of release from the program. He recommended her service be characterized as honorable and that she was entitled to a hearing before an administrative separation board. 9. The applicant acknowledged receipt of the proposed separation action on 30 October 2013. She was advised by counsel of the basis for the contemplated action to separate her for failure to meet body fat standards under the provisions of Army Regulation 635-200, chapter 18. She elected consideration of her case before an administrative separation board and a personal hearing before the board. She elected not to submit statements on her own behalf. 10. The applicant, as witnessed by counsel on 31 October 2013, submitted a memorandum to Commander, 35th Signal Brigade, waiving consideration of her case by an administrative separation board, to include a personal appearance before such board. 11. The separation authority approved the applicant's discharge prior to her ETS date under the provisions of Army Regulation 635-200, chapter 18, by reason of failure to meet body fat standards. He directed characterization of her service as honorable. He further directed she would not be transferred to the IRR. 12. The applicant was honorably discharged on 14 January 2014. Her DD Form 214 confirms she was discharged in accordance with Army Regulation 635-200, chapter 18, for weight control failure. Her DD Form 214 further shows in: * Item 9 (Command to Which Transferred), the entry "N/A" * Item 26, the entry "LCR" * Item 27 (Reentry Code), the entry "3" 13. Orders C-01-500240 issued by U.S. Army Human Resources Command, Fort Knox, KY, on 7 January 2015 shows she was voluntarily released from the USAR Control Group (Reinforcement) and was assigned to the 961st Engineer Company, Sharonville, OH, effective 4 December 2014. Her ETS date was cited as 16 December 2015. 14. Orders 16-033-00004 issued by Headquarters, 88th Regional Support Command, Fort McCoy, WI, on 2 February 2016 show she was honorably discharged from the USAR in accordance with Army Regulation 135-178 (Army National Guard and Army Reserve – Enlisted Administrative Separations) effective 2 February 2016. Further, the additional instructions stated: "Expiration of USAR service obligation. Soldier was held beyond normal discharge date through no fault of the Soldier." 15. Her available records contain a DA Form 5016 (Chronological Statement of Retirement Points), dated 8 June 2017, which shows she received retirement points based on creditable service between the separation date specified on her DD Form 214 (shown a her Regular Army discharge date) and the date of her discharge from the USAR. REFERENCES: 1. Army Regulation 600-9 established policies and procedures for the implementation of the ABCP. It provided that: a. The Army traditionally has fostered a military appearance that is neat and trim. Further, an essential function of day-to-day effectiveness and combat readiness of the Army is that all personnel are healthy and physically fit. Self-discipline to maintain proper weight distribution and high standards of appearance are essential to every individual in the Army. b. Each Soldier is responsible for meeting the standards prescribed in this regulation. If a Soldier consistently exceeds the personal weight goal, he or she should seek the assistance of master fitness trainers and health care personnel. c. Commanders and supervisors will monitor all members of their command to insure that they maintain proper weight, body composition, and personal appearance. At minimum, personnel will be weighed when they take the Army Physical Fitness Test or at least every 6 months. Personnel exceeding the screening table weight or identified by the commander or supervisor for a special evaluation will have a determination made of percent body fat. Identification and counseling of overweight personnel are required. Commanders and supervisors will provide educational and other motivational programs to encourage personnel to attain and maintain proper weight (body fat) standards. d. A medical evaluation will be accomplished by health care personnel when the Soldier has a medical limitation, or is pregnant, or when requested by the unit commander. One is also required for Soldiers being considered for separation due to failure to make satisfactory progress in a weight control program, or within 6 months of ETS. If an individual's condition is diagnosed by medical authorities to result from an underlying or associated disease process, health care personnel will take one of the following actions: (1) Prescribe treatment to alleviate the condition and return personnel to their unit. (2) Hospitalize individuals for necessary treatment; this action applies to Active Army personnel only. Reserve Component personnel will be referred to their personal physician for further evaluation or treatment at the individual's expense. (3) Determine whether the individual's condition is medically disqualifying for continued service. In these cases, disposition will be made under provisions of appropriate regulations. e. If health care personnel discover no underlying or associated disease process as the cause of the condition and the individual is classified as overweight, these facts will be documented and the individual entered in a weight control program by the unit commander. Suspension of favorable personnel actions will be initiated for personnel in a weight control program. (1) 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 body fat standards. Weight-ins will be made by unit personnel monthly to measure progress. (2) An individual who has not made satisfactory progress after any two consecutive monthly weigh-ins may be referred by the commander or supervisor to health care personnel for evaluation or reevaluation. If health care personnel are unable to determine a medical reason for lack of weight loss-and if the individual is not in compliance with the body fat standards and still exceeds the screening table weight, the commander or supervisor will inform the individual that progress is unsatisfactory and he or she is subject to separation. f. After a period of dieting and/or exercise for 6 months, Soldiers who have not made satisfactory progress and who still exceed the screening table and body fat standards will be processed as follows: (1) If health care personnel determine that the condition is due to an underlying or associated disease process, the Soldier will be referred for a medical evaluation. (2) If no underlying or associated disease process is found to cause the overweight condition, the Soldier will be subject to separation from the Service under appropriate regulations. 2. Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Provisions) prescribes policies and procedures governing the various types of service obligations and participation requirements in the Army National Guard of the United States and the USAR. The statutory military service obligation (MSO) is incurred on initial entry into the Armed Forces whether by induction, enlistment, or appointment. Soldiers who enlisted on and after 1 June 1984 incurred an 8-year MSO. The statutory MSO can be terminated by the Army prior to its fulfillment. Separation due to discharge, dismissal, or being dropped from the rolls of the Army terminated a Soldier's statutory obligation. 3. Army Regulation 635-200 sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. a. Mobilization Asset Transfer Program is to ensure that sufficient trained manpower is available in the RC to meet the Army's personnel requirement under conditions of full mobilization. To retain mobilization assets, eligible and qualified active Army Soldiers who have a statutory or contractual military service obligation (MSO) will be transferred to the IRR upon completion or their active duty service. Soldiers who are not transferred to the IRR will be discharged. b. Soldier with a remaining MSO may be transferred to the IRR upon release from active duty if they are determined by the separation authority to possess the potential for useful service if ordered to active duty under conditions of full mobilization. Soldiers with a remaining MSO are ineligible for transfer to the IRR and will be discharged if they are determined by the separation authority to possess no potential for useful service under conditions of full mobilization. c. Careful deliberation by the separation authority as to the potential of the Soldier for useful service as a mobilization asset is essential if a Soldier's separation was due to failure to meet body fat standards. d. Chapter 18, outlines policies and procedures for separation actions based on failure to meet body fat standards set forth in Army Regulation 600-9. To be separated under this chapter, the Soldier must have been given a reasonable opportunity to comply with and meet the Army's body fat standards. Soldiers separated under this chapter will be given an honorable characterization of service. 4. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) prescribes eligibility criteria governing the enlistment of persons with or without prior service into the Regular Army, USAR, and Army National Guard. This regulation provides that prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or the reason for discharge. Table 3-1 provides a list of RE codes. * RE code "1" applies to Soldiers who have completed their terms of active service who are considered qualified for enlistment if all other criteria are met * RE code "3" applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable – they are ineligible unless a waiver is granted 5. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the separation code to be entered on the DD Form 214. It identifies two separation codes to be assigned to enlisted Soldiers who are separating when the narrative reason is weight control failure and the separation authority is Army Regulation 635-200, chapter 18. a. SPD code "JCR" is the appropriate separation code for Soldiers being involuntarily discharged from the service. b. SPD code "LCR" is the appropriate separation code for Soldiers being involuntarily released from active duty or transferred to the USAR. 6. The U.S. Army Human Resources Command publishes a cross-reference list of separation codes and RE codes. The cross-reference list in effect at the time shows that a separation code of "LCR" or "JCR" are both assigned an RE code of "3." DISCUSSION: 1. The applicant's request for correction of item 26 of her DD Form 214 was carefully considered. She contends she was able to get into the USAR based on her second USAR reenlistment contract, which shows a contractual ETS date of 16 December 2015, and she needs her "code" changed in order to extend her contract. However, she currently has no military status. 2. The evidence of record shows that while she was serving on active duty under her Regular Army enlistment contract, she failed to meet body fat standards in accordance with governing Army regulations. Accordingly, her chain of command initiated separation actions. The separation authority directed her separation from the Army with an honorable character of service and directed she not be transferred to the IRR. Her DD Form 214 confirms she was discharged on 14 January 2014. 3. However, the transition services office inadvertently used the wrong separation code of "LCR" for Soldiers being involuntarily released from active duty or transferred to the USAR, instead of the proper separation code "JCR" for Soldiers being involuntarily discharged from the service, which was directed by the separation authority. All other entries on her DD Form 214 are correct. 4. Soldiers who enlisted on and after 1 June 1984 incurred an 8-year MSO. The statutory MSO can be terminated by the Army prior to its fulfillment. Separation due to discharge, dismissal, or being dropped from the rolls of the Army terminated a Soldier's statutory obligation. Her statutory MSO expired on 3 September 2011. 5. Additionally, in order to retain trained manpower for the Reserve Components, eligible and qualified active Army Soldiers who have a statutory or contractual MSO will normally be transferred to the IRR upon completion of their active duty commitment. Based on her reason for separation and the separation authority's directive, she was not transferred to the IRR in accordance with applicable regulations. 6. Unfortunately, the transition services office used the wrong separation code that allowed the personnel system to place her in the IRR. Subsequently, she was able to procure orders that allowed her to be placed in a troop program unit of the USAR with an ETS date of 16 December 2015. She was eventually discharged from the USAR on 2 February 2016. 7. It is the policy of this Board to not disadvantage an applicant by making the applicant worse off for having applied for a records correction. Technically, the applicant's separation code was incorrectly entered on her DD Form 214. This, in turn, inadvertently caused the Army personnel system to place her in the IRR. Any change to the separation code at this time may cause unexpected cascading effects toward other benefits (e.g., pay and duty performance as documented on her DA Form 5016). Aside from item 26 of her DD Form 214, the form is otherwise correct in that she was discharged from the Army. 8. The applicant is advised that her RE code does not mean she is disqualified from reentering military service. An RE code of "3" applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation; however, the disqualification may be waived. If the applicant desires to reenter service the Army, she should contact a local recruiter who can best advise a former service member as to the needs of the Army at the time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150018610 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150018610 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2