MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            12 April 2000                  
	DOCKET NUMBER:    AR1999031174

	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:

	Mr. Robert G. Hinkle		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. James P. Steuve		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:  Through counsel, that his suspension of favorable personnel actions (flag) be removed from his records, that it be shown that he is eligible to attend Phase II of Command and General Staff College, that it be shown that he was not twice passed over for promotion to lieutenant colonel (LTC), and that it be shown that he completed 20 qualifying years of service for retired pay.  In the alternative, he requests that his discharge be corrected to transfer to the Retired Reserve.  (Although not specifically mentioned by the applicant’s counsel, he is also requesting that the applicant be promoted to LTC by virtue of correcting his records to show that he was not passed over for promotion to LTC).

APPLICANT STATES:  Through counsel, that body fat measurements other than those that resulted in his being flagged (suspension of favorable personnel actions) clearly show that the body fat measurement in question was improperly accomplished.  Counsel adds that the two body fat measurements taken by a particular NCO are the only evidence that the applicant exceeded the body fat standards.  Counsel concludes that if the applicant had not been improperly flagged he would have completed schooling required to be promoted to lieutenant colonel and would have been retained to complete 20 years of commissioned service.

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

The applicant enlisted in the ARNG in 1970, served through reenlistments and was promoted to pay grade E-6, was appointed as a warrant officer and served as a CW2, and then was commissioned as a Medical Corps officer, serving in a USAR troop program unit.

The applicant’s records show that other than his first two Officer Evaluation Reports (OER’s), all of his OER’s are mediocre or adverse, with the OER’s for the periods ending on 21 March 1993 and 30 September 1995 being referred to him for comment because of their adverse nature.

On 18 June 1999 the applicant, then a major, was notified that he had been twice considered but not selected for promotion to LTC and of the options he had as a result of that failure to be selected.  One of those options was to be retained to complete 20 years of commissioned service if he was eligible for retention consideration.  He elected that option.

While the applicant’s records do not show the disposition of his request to be retained, it is presumed that he did not meet the prerequisites for retention based on his 30 August 1999 honorable discharge.

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.  The applicant’s Official Military Personnel File (OMPF) is obviously missing a considerable amount of documentation pertaining to the applicant.  For that matter there is no record of the applicant being flagged for exceeding the Army body fat standards.

2.  However, the Board does not consider the documentation pertaining to the body fat measurement which determined that the applicant exceeded the Army body fat standards of critical importance.  The applicant’s counsel has presented two major arguments to the Board, that the applicant’s other body fat measurements prove the measurement which determined he exceeded the body fat standards was erroneous, and that absent the flag which was placed on the applicant it would be reasonable to presume that he would have been selected for promotion to LTC or otherwise qualify for retention until he completed 20 qualifying years of service.

3.  The Board disagrees in both regards.  The fact that the applicant was found in compliance with the body fat standards on other dates in no way shows that he was in compliance on the date in question.  In addition, the applicant’s mediocre and adverse OER’s would reasonably be expected to have resulted in his failure to be selected for promotion if he had not been flagged for exceeding the Army body fat standards.  As such, the Board does not consider his flag for overweight to be the sole factor in his failure to be selected for promotion and, therefore, his resultant discharge.

4.  As for changing his discharge to transfer to the Retired Reserve, the applicant’s OMPF does not contain sufficient information to show that he qualified for transfer to the Retired Reserve.

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

__rgh____  __bje___  ___jps___  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999031174	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000412	
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.	135.03	
2.		
3.		
4.		
5.		
6.