ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 
RECORD OF PROCEEDINGS 
IN THE CASE OF:   BOARD DATE: 12 April 2021 DOCKET NUMBER: AR20200009768 
APPLICANT REQUESTS: The applicant requests the upgrade of his general discharge under honorable conditions to honorable. 
APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
. 
DD Form 149 (Application for Correction of Military Record) 

. 
DD Form 293 (Application for the Army Discharge Review Board) 

. 
DD Form 214 (Certificate of Release or Discharge from Active Duty) 


FACTS: 
1. 
The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). However, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2. 
The applicant states, in effect, he feels he received an unjust discharge, in that, while he was overweight for his height, he never failed an Army Physical Fitness Test (APFT); based on this, he contends he deserves an honorable character of service. 

3. 
The applicant's service records show: 


a. 
Having had prior enlisted service in the U.S. Army Reserve, during which the applicant was awarded military occupational specialty 31 K (Combat Signaler), the applicant enlisted into the Regular Army, on 13 February 1987, for a 3-year term; he was 19 years old, and he entered in the rank/grade of private (PV2)/E-2. On 25 February 1987, the applicant transferred to Germany, and, on 3 March 1987, the applicant arrived at his unit of assignment (a field artillery battalion). After a promotion to private first class (PFC)/E-3 (date not available for review), the applicant's leadership promoted him to specialist (SPC)/E-4, effective 1 July 1988. 

b. 
Between September and December 1988, the applicant and his unit received notice the applicant had uttered three dishonored checks, totaling $240 and written to the Army and Air Force Exchange Service (AAFES). 

c. 
On 4 April 1989, the applicant extended his enlistment by 1 month, in order to meet service-remaining requirements for his overseas tour; his adjusted expiration term of service became 12 March 1990. 

d. 
Permanent Orders (PO), dated 9 May 1989, awarded the applicant the Driver and Mechanic Badge with Driver-W (wheeled vehicle) Component Bar. 

e. 
On 15 November 1989, the applicant immediately reenlisted for 3 years. On 19 January 1990, PO awarded the applicant the Army Achievement Medal for meritorious achievement during the period 27 November to 18 December 1989. 

f. 
At various times in June 1990, the applicant's first sergeant (1SG) and his noncommissioned officer (NCO) supervisor each issued the applicant counseling statements on DA Forms 4856 (General Counseling Form): 

. 
8 June 1990 – 1SG counseled the applicant for failing the Primary Leadership Development Course (PLDC) 

. 
14 June 1990 – applicant's supervisor counseled him for not following an NCO's order to notify units of an equipment turn-in, and going to the back instead; the applicant contended he had finished his mission before leaving 

. 
19 June 1990 – applicant's supervisor counseled the applicant for not properly maintaining DD Forms 314 (Preventive Maintenance Schedule and Record); the applicant agreed, but argued he was not given enough time and had never been taught the forms' "Dos and Don'ts" 

. 
19 June 1990 – applicant's supervisor relieved the applicant from his duty position at the "RETRANS" and returned him to the "Wire Section," after the applicant failed to dispatch vehicles, did not properly maintain communications equipment, and did not provide his NCO with a "remote" 



g. 
On or about 19 July 1990, the U.S. Army Europe (USAREUR) Motor Vehicle Registrar advised the applicant's commander that, as of 19 July 1990, and following a citation for following too close, the applicant had accumulated enough traffic points to require remedial driver's training. On 2 August 1990, the applicant's commander requested the local Provost Marshal's Office schedule the applicant for a remedial driver's training course. 

h. 
On 6 September 1990, the applicant's commander completed a DA Form 5500-R (Body Fat Content Worksheet (Male)) on the applicant, which showed the applicant exceeded the maximum allowable weight by 24 pounds, and had a body fat content of 23.58 percent (1.58 percent higher than the Army standard). 


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(1) 
On 7 September 1990, the commander enrolled the applicant in the unit's weight control program, and stated the applicant's goal for satisfactory weight loss was a reduction in 3 to 8 pounds per month; in addition, the commander advised the applicant that failure to make satisfactory progress could result in separation from the Army. 

(2) 
Also, on 7 September 1990, the applicant's commander requested, in writing, the supporting medical detachment to evaluate the applicant to determine whether the applicant's weight was the result of a medical condition; a physician's assistant subsequently responded the applicant's overweight condition was not due to a medical issue. 

i. 
On 7 September 1990, the applicant's commander initiated bar to reenlistment action against the applicant, stating the applicant was unsuitable to reenlist because the applicant was overweight, and being overweight represented a "total display of apathy towards military standards." In further support of his request, the commander referenced two of the applicant's counseling forms (both dated 19 June 1990), wherein the applicant had been relieved of his "RETRANS" duties and had been cited for failing to maintain DD Forms 314. On 10 September 1990, the battalion commander approved the bar to reenlistment. 

j. 
On 27 September 1990, the applicant's supervisor gave the applicant his monthly counseling; the supervisor thanked the applicant for his attention to detail and stated the applicant had been a real asset to the section. The supervisor noted the applicant had been barred and was flagged (due to being overweight), but urged the applicant to stay positive, and to prepare himself for earning back his promotable status. 

k. 
On 28 September 1990, the applicant and the applicant's unit received notice the applicant's check cashing privileges had been suspended because the applicant had written a dishonored check to AAFES, dated 27 July 1990 and for $100. 

l. 
On 9 October 1990, the applicant's 1SG counseled the applicant to advise him, if his improper behavior continued, the applicant could face separation proceedings; the 1SG specifically noted the following concerns: 

. 
Bar to reenlistment and flagging action due to being overweight 

. 
PLDC failure 

. 
Not following orders 

. 
Not properly maintaining DD Forms 314 

. 
Relief from his "RETRANS" duty position 

. 
Commander's request for applicant's remedial driver's course 

. 
Accumulation of traffic points 

. 
Over-stamp of applicant's military identification card because of writing bad checks 



m. 
On 12 October 1990, the applicant's commander prepared the applicant's DA Form 5500-R, which showed, while the applicant had lost 2 pounds, he was still 22-pounds overweight, and his body fat percentage now exceeded the maximum by 


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0.80 percent. On 15 October 1990, the commander counseled the applicant, using a DA Form 4856, in which he informed the applicant that the 12 October 1990 screening had indicated the applicant still exceeded Army weight standards, and the applicant's continued lack of progress in the weight control program could result in his separation. 
n. On 22 October 1990, the applicant's commander requested the applicant's psychiatric evaluation based on a pending separation action. The commander noted the following in his request: 
(1) 
The applicant had tried to do what he was told by his superiors, but he never completed tasks to standard. The applicant had been counseled numerous times and told what was expected; in addition, the applicant had been relocated to two other units within the battalion before arriving at his current placement. 

(2) 
The commander's estimate of the applicant's chances for retention on active duty were not favorable; in the commander's view, the applicant seemed "lethargic and lazy," and attempts to increase the applicant's job performance had failed. 

o. 
On 15 November 1990, the applicant's commander prepared the applicant's weight assessment, using a DA Form 5500-R; the commander stated the applicant's weight now exceeded Army standard by 25-pounds, and the applicant's body fat was 


1.19 percent over the Army's limit. 
p. 
On 19 November 1990, the applicant's commander advised him of his intent to separate the applicant under the provisions of chapter 13 (Separation for Unsatisfactory Performance), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). The commander stated he had initiated this action because the applicant had been barred from reenlistment, based on being overweight, and the applicant had failed PLDC, did not follow orders, had not properly maintained DD Forms 314, and had bounced numerous checks. The commander stated he was recommending the applicant for a general discharge under honorable conditions, but the final decision rested with the separation authority. 

q. 
On 20 November 1990, after consulting with counsel, the applicant acknowledged counsel had informed him of the basis for the contemplated separation action. In addition, he affirmed he understood his rights and the effect of waiving those rights. He elected to submit statements in his own behalf, and provided the following: 


(1) Staff Sergeant (SSG) C__, Tactical Communications Chief, stated the applicant had participated in many field exercises, to include two REFORGERs (Return of Forces to Germany) and four rotations to the Grafenwoehr training site. During one of the Grafenwoehr exercises, the leadership awarded the applicant the Army 
4 
Achievement Medal for the applicant's outstanding duty performance. In 1989, the applicant's attention to detail resulted in his name being specifically and favorably mentioned during the brigade's Command Inspection Out-Brief. Further the applicant had earned a driver's safety award in 1989. The foregoing showed the applicant could continue to serve on active duty. 
(2) 
Sergeant First Class (SFC) L__, Platoon Sergeant, wrote the applicant had been assigned as the platoon's communications sergeant; the applicant performed his duties with great pride and motivation, and he successfully maintained the platoon's communications throughout several Grafenwoehr exercises and REFORGERs. Because of his outstanding duty performance, the applicant received several commendations. 

(3) 
Two friends and a coworker provided statements, in which they lauded the applicant's leadership qualities, and described him as hardworking, knowledgeable, and always willing to help others. 

(4) 
The applicant submitted a statement, in which he recounted his entry into the Army and, in effect, expressed his gratitude for what he had experienced over his 5 1/2 years of Army service; for him, the Army was not just a job, it was a part of his life. He acknowledged military life had not always been easy, but he had adapted, and he had learned how to work with a variety of leadership styles; whenever he confronted conflicts, he found he was able to sit down and talk to people and work out differences. The applicant went on to affirm he felt his subordinates always were able to come to him for help, and he continually tried to instill in them a sense of pride and self-confidence. The applicant contended he was a good Soldier who always tried to maintain Army standards, and, if given a second chance, and a little more time, he would be able to improve his imperfections and become the ideal Soldier. 

r. 
On 21 November 1990, the applicant's commander submitted his recommendation to the separation authority; in addition to enumerating his reasons for recommending the applicant's separation, the commander stated, "on 18 October 1990, [applicant] was counseled as a rehabilitative measure; his demeanor has not improved." 

s. 
On 14 December 1990, the separation authority approved the commander's recommendation and directed the applicant's general discharge under honorable conditions; on 24 December 1990, the applicant was discharged accordingly. The applicant's DD Form 214 shows he completed 3 years, 10 months and 12 days of net active duty service, of which 1 year, 1 month, and 10 days was served under his last reenlistment contract. Item 18 (Remarks) on his DD Form 214 does not list his continuous honorable service, from 13 February 1987 until 14 November 1989; the separation authority is AR 635-200, chapter 13 and the narrative reason for separation was "Unsatisfactory Performance." The applicant was awarded or authorized the Army Service Ribbon, Overseas Service Ribbon, Army Achievement Medal, Driver and 


5 
Mechanic Badge with Driver-W Component Bar, and a marksmanship qualification badge. 
t. The applicant's available service record includes a DA Form 705 (APFT Scorecard), which shows, between October 1988 and August 1989, the applicant took three APFTs and passed each one. 
4. The applicant argues his separation was unjust because, although he did not meet Army height/weight standards, he never failed an APFT. 
a. 
During the applicant's era of service, commanders could initiate separation action, under chapter 13, AR 635-200, when Soldiers demonstrated: they would not sufficiently develop to adequately participate in further training and/or become a satisfactory Soldier; the seriousness of the circumstances were such that the Soldier's retention would have an adverse effect on military discipline, good order, and morale; the Soldier was a disruptive influence and the causes for a separation recommendation were likely to continue; and the Soldier's ability to perform duties effectively in the future, to include his/her potential for advancement or leadership, was unlikely. Before initiating separation action, commanders were required to ensure the Soldier received adequate counseling and rehabilitation. Separation authorities could issue the Soldier either an honorable or under honorable conditions character of service. 

b. 
AR 600-9, then in effect, prescribed the Army's weight control policies and stated each individual Soldier was responsible for meeting the Army's weight standards. Commanders were required to implement the Army Weight Control Program, which included the evaluation of each Soldier's height/weight, continued education about maintaining weight standards, the maintenance of data on each Soldier's height/weight, and an effort to encourage all Soldiers to meet and maintain weight standards. The regulation additionally mandated overweight Soldiers receive counseling. 


(1) 
The regulation further outlined procedures of determining a Soldier's body fat, and provided standard methods using the circumferences of specific parts of the body. 

(a) 
Table 1 (Weight for Height Table (Screening Table Weight) listed the allowable weights by height; for example, for a male Soldier who was 67 inches tall and between the ages of 21 and 27, the maximum allowable weight was 169 pounds (a Soldier who was 66 1/2 inches tall was evaluated using the standard for 67 inches). 

(b) 
Paragraph 20c (Policy – Maximum Allowable Percent Body Fat Standards) listed, by gender and age group, the highest percent of body fat permitted; e.g. a male Soldier between the ages of 21 and 27 was allowed up to 22 percent. 


(2) When a Soldier failed to make satisfactory weight loss progress after a 
6 
6-month period of dieting and/or exercise, his/her commander was required to inform the individual in writing that, if no progress was made, the commander would consider initiating separation proceedings under paragraph 5-15 (Failure to Meet Army Body Composition/Weight Control Standards), AR 635-200; the regulation did not mention a Soldier's performance on an APFT. 
(3) 
Paragraph 5-15, AR 635-200, stated commanders could separate Soldiers who failed to meet the Army's body composition/weight control standards, when failure to meet body composition/weight standards formed the sole basis for separation. Separation could not be initiated until the Soldier had been given a reasonable opportunity to comply with and meet body composition/weight reduction goals. Separation under this provision was not to be initiated when the Soldier met the criteria for discharge under other separation chapters (i.e. Soldiers who, in addition to being overweight, were unsatisfactory performers were to be separated under chapter 13). When a Soldier was separated under paragraph 5-15, he/she was to be issued an honorable discharge. 

c. 
In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. 


BOARD DISCUSSION: 
After reviewing the application, all supporting documents and the evidence found within the military record, and applying published DoD guidance for liberal consideration and clemency consideration of discharge upgrade requests, the Board found that relief was not warranted. The Board considered the applicant's statement, his records of service, the frequency and nature of his misconduct and performance deficiencies, a bar to reenlistment and the reason for his separation. The Board did not find sufficient in-service evidence to mitigate the reasons for his separation. He did not provide evidence of post-service achievements or letters of reference sufficient to support a clemency determination. Based on the documentation available for review and by a preponderance of evidence, the Board determined that the character of service the applicant received was not in error or unjust. The Board concurred with the corrections stated in the Administrative Note(s) below. 
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BOARD VOTE: 
Mbr 1 Mbr 2 Mbr 3 
: : : GRANT FULL RELIEF 
: : : GRANT PARTIAL RELIEF 
: : : GRANT FORMAL HEARING 
:XXX :XXX :XXX DENY APPLICATION 
BOARD DETERMINATION/RECOMMENDATION: 
Except for the corrections addressed in Administrative Note(s) below, the Board found 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. 
ADMINISTRATIVE NOTE(S): 
1. 
Per AR 635-8 (Separation Processing and Documents), Soldiers separated with less than an honorable character of service will show the following comment in item 18: "CONTINUOUS HONORABLE SERVICE FROM (first day of service not listed on the DD Form 214) TO (date before commencement of current enlistment)." 

2. 
As a result, amend the applicant's DD Form 214, for the period ending 24 December 1990, by adding to item 18 the following:  "CONTINUOUS HONORABLE SERVICE FROM 19870213 TO 19891114." 


REFERENCES: 
1. 
Title 10, USC, 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 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. 

2. 
AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. 


a. 
Paragraph 3-7a stated an honorable discharge was separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. An honorable discharge could be furnished when disqualifying entries in the Soldier's military record was outweighed by subsequent honest and faithful service over a greater period of time. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. 

b. 
Paragraph 5-15 (Failure to Meet Army Body Composition/Weight Control Standards). Commanders could separate Soldiers who failed to meet the Army's body composition/weight control standards when such condition formed the sole basis for separation. Separation could not be initiated until the Soldier had been given a reasonable opportunity to comply with and meet body composition/weight reduction goals. Separation under this provision was not to be initiated when the Soldier met the criteria for discharge under other separation chapters (i.e. Soldiers who, in addition to being overweight, were unsatisfactory performers were to be separated under chapter 13). When a Soldier was separated under this paragraph, he/she was to be issued an honorable discharge. 

c. 
Chapter 13 (Separation for Unsatisfactory Performance). Soldiers could be separated under this provision when the commander determined he/she was unqualified for further military service because of unsatisfactory performance (i.e. the Soldier would not develop sufficiently to participate satisfactorily in training or become a satisfactory Soldier; was likely to be a disruptive influence; and retaining the Soldier would have an adverse impact on military discipline, good order, and morale). Before initiating separation action, commanders were required to ensure the Soldier received adequate counseling and rehabilitation. The Soldier could receive either an honorable or under honorable conditions character of service. 


3. AR 600-9 (The Army Weight Control Program), in effect at the time, stated each Soldier was responsible for meeting the Army's weight standards. 
a. 
Commanders were to implement the Army Weight Control Program, which was to include the evaluation of each Soldier's height/weight, continued education about maintaining weight standards, the maintenance of data on each Soldier's height/weight, and an effort to encourage all Soldiers to meet and maintain weight standards. 

b. 
The regulation additionally outlined procedures of determining a Soldier's body fat, and provided standard methods using the circumferences of specific parts of the body. Table 1 (Weight for Height Table (Screening Table Weight) listed the allowable weights by height; for example, for a male Soldier who was 67 inches tall and between the ages of 21 and 27, the maximum allowable weight was 169 pounds. Paragraph 20c (Policy – Maximum Allowable Percent Body Fat Standards) listed, by gender and age group, the highest percent of body fat permitted; e.g. a male Soldier between the ages of 21 and 27 was allowed up to 22 percent. 

d. 
When a Soldier failed to make satisfactory weight loss progress after a period of dieting and/or exercise for 6 months, his/her commander was required to inform the individual in writing that initiation of separation proceedings was being considered under paragraph 5-15, AR 635-200. 


4. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. 
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