PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           18 March 2003
	DOCKET NUMBER:   AR2002079815

	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. William Blakely		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Ms. Margaret K.  Patterson		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.  The applicant requests, in effect, that his general, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD). 

3.  The applicant’s military records show that on 19 November 1981, he enlisted in the Regular Army and entered active duty for 3 years.  He was trained and served in military occupational specialty (MOS) 95B (Military Police).

4.  The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition, and it confirms that the highest rank he attained while on active duty was private first class /E-3.  

5.  On 30 June 1982, the applicant was medically evaluated to determine if enrollment in the Army Weight Control Program (AWCP) was appropriate.  It was determined that the applicant exceeded Army weight standards and he was placed in the AWCP.  During his participation in this program, he was formally counseled by his chain of command on twenty-three separate occasions for his failure to lose the amount of weight required for him to meet Army weight control standards.  In addition, on 23 June 1983, he was administered a “pinch test”, which resulted in his being found to be overweight by 11 pounds.  As a result, he was barred from reenlistment based on his lack of progress in the AWCP. 

6.  On 12 December 1983, the applicant’s unit commander notified him that separation action was being initiated against him under the provisions of chapter 13, Army Regulation 635-200, for unsatisfactorily performance.  The reasons cited for the action were the applicant’s inability to develop sufficiently to participate satisfactorily in further training and become a satisfactory soldier.

7.  On 12 December 1983, the applicant consulted legal counsel, and after being advised of the basis for the contemplated separation action, he elected not to submit a statement in his own behalf.  On 30 December 1983, the appropriate authority approved his separation and directed that he receive a GD.  On 
3 January 1984, the applicant was discharged accordingly.  At the time of his discharge, he had completed a total of 3 years, 8 months, and 11 days of active military service.

8.  There is no evidence showing that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statue of limitations.

9.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 13 contained the policy and outlines the procedures for separating individuals for unsatisfactory performance. It provided, in pertinent part, that commanders could separate a member under this chapter when, in the commander’s judgment, the member would not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier.  Members who failed to meet the Army weight control standards who were recommended for separation by their commanders were processed under these provisions of the regulation.  

10.  Department of Defense (DOD) Directive 1332.28, dated 11 August 1982, subject: Discharge Review Board Procedures and Standards, established uniform policies, procedures, and standards for the review of discharges.  Section 4 set forth the objectives for discharge review and stated, in pertinent part, that a change in policy, made expressly retroactive to the type of discharge under consideration, requires a change in the discharge.  In addition, it indicates that a change of discharge is appropriate when there is substantial doubt the same discharge would be received if the relevant current policy had been in effect at the time the discharge was considered, even though the discharge was determined to have been otherwise equitable and proper at the time of issuance.

11.  Since the time of the applicant’s discharge, chapter 18 (Failure to Meet Body Fat Standards) was added to Army Regulation 625-200.  Chapter 18 (Failure to Meet Body Standards), currently in effect, provides that soldiers who failed to meet the body fat standards set forth in Army Regulation 600-9 shall be separated under this provision when it is the sole basis for separation.  The regulation also states that if no medical condition exists and if the individual fails to make satisfactorily progress in the AWCP after a period of six months, then imposition of a bar to reenlistment and initiation of a separation action are required.  The regulation further stipulates that the service of soldiers separated under this chapter will be characterized as honorable.  

CONCLUSIONS:

1.  The Board notes the applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors and his characterization of service was appropriate based on regulatory guidance in effect at the time.  However, current regulatory guidance specifies that when the sole basis for a soldier’s separation is failure to meet the standards of the AWCP, his/her service will be characterized as honorable.  

2.  The evidence of record confirms that the sole reason for the applicant’s discharge was his failure to meet AWCP standards.  At the time of his discharge, he was properly issued a GD.  However, under current regulatory standards, the reason for the applicant’s discharge would not warrant a GD.  If he were discharged for the same reason under current standards, he would receive an HD.

3.  In view of the facts of this case, the Board finds that the GD received by the applicant is inequitable under current regulatory standards.  Therefore, it concludes that it would be appropriate to correct the applicant’s record by upgrading his discharge to an HD.

4.  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 upgrading the 3 January 1984 general discharge of the individual concerned to honorable; and by issuing him a corrected separation document that reflects this change. 

BOARD VOTE:  

__JLP__  __ AAO  _  __ MKP __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_      Jennifer L. Prater     _
		    CHAIRPERSON

INDEX

CASE ID	AR2002079815	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/03/18	
TYPE OF DISCHARGE	GD,	
DATE OF DISCHARGE	19840103	
DISCHARGE AUTHORITY	AR635-200 . . . . .  	
DISCHARGE REASON	Unsatisfactory Performance	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	144.6906	
2.		
3.		
4.		
5.		
6.