Posted on Mar 25, 2021
Can i still fight my ABCP Chapter 18 if it’s already been approved by the BC?
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So here’s some back round: i was put on ABCP because of rapid weight gain due to a medical condition right before COVID. My first month on it I didn’t show improvement(but I didn’t gain), I was exactly the same weight and BFP. Then next few months I made progress. The month covid started I had a second “no progress”(again same story as the first with the not gaining but just stalling). April I received a counseling that ABCP was being suspended until further noticed. We had no ht/wt or remedial PT until July. In July I met with the commander to do a weigh in and when we did my counseling he told me AND WROTE ON MY COUNSELING THAT IT WAS MY INITIAL WEIGH IN AND I WAS RESTARTING ON THE ABCP PROGRAM. My first line was with me and he verified that none of my stuff was going to be held against me from before COVID. The commander said it would not but that he was going to keep the nutrition and medical memo so that I didn’t have to redo those but that the actual paperwork as far as weigh ins was starting over. Cool. Well fast forward to September. I had a month again, only lost 2 lbs and my BFP stayed the same as the month before. My commander then told me he was initiating my chapter but not to worry because initiating didn’t mean I was done and out. Let’s fast forward to last month… I have since September still been participating in ht/wt and taping and making progress every month. As well as finally being treated for the temporary medical condition that had caused me to gain the weight and had medication changes to help me lose the weight and to regulate some hormone and vitamin deficiencies that also played a part in the weight issues. However, when I weighed in, I am still just 2% over(I started at 9%over and that 9% happened in less than 4 months which is what sparked almost a year of testing).. my commander advised me he was moving ahead with the chapter and sending it to the BC so I needed to contact TDS if I didn’t agree. I have less than 6 years of service so I do not qualify for a separation board. However I met with them and the attourney told me I had a good case and I shouldn’t be separated due to 1) the NEW Inital counseling in July, 2) the temporary health conditions which I should have been given time to deal with before even being negatively impacted by that(yes I know I’d still be in ABCP but he said I shouldn’t be being chartered) and 3) some of my counseling’s aren’t signed or some of the 5501 aren’t signed or there isn’t a confirmation tape in the packet. He writes me a memo. Tells me to have my NCO to write a sworn statement about what was said during my counseling session, get character statements, and to write my own.
Now today, I get called into the commanders office and am told to bring my LES. I am informed that the BC approved my chapter and my last day in the Army is April 12(so 19 days from now) and I should expect my orders tomorrow by email) and I will start clearing on Monday.
So I guess I’m wondering, is that it? Can I still try to go to TDS and fight it because I feel as though the BC didn’t read anything that was sent up to her by me. And obviously the BC and company commander see each other on a much more regular basis than I see her considering I don’t even know what by BC looks like. So maybe she’s just taking my CC word and just chattering me? I’m just so confused right now and kinda feel like I’m being screwed. This man literally said “you’re an outstanding soldier and have the potential to be a great NCO. But that doesn’t mean you belong in the army. Not everyone does.” Like wtf does that even mean? Also, sorry about the rant. My head is a mess. I knew this was a possibility but I’ve been working hard with my doctors on top of the PT and I’m sooooo close to being done and my NCOs were even making future plans for me cause they knew by next month with the rate I had been at these last 2 months I would be done with ABCP. And my commander just had me on this “initiation does not mean separation” bullshit belief. He said it every month when I met with him. And then BAM. I’m gone.
Now today, I get called into the commanders office and am told to bring my LES. I am informed that the BC approved my chapter and my last day in the Army is April 12(so 19 days from now) and I should expect my orders tomorrow by email) and I will start clearing on Monday.
So I guess I’m wondering, is that it? Can I still try to go to TDS and fight it because I feel as though the BC didn’t read anything that was sent up to her by me. And obviously the BC and company commander see each other on a much more regular basis than I see her considering I don’t even know what by BC looks like. So maybe she’s just taking my CC word and just chattering me? I’m just so confused right now and kinda feel like I’m being screwed. This man literally said “you’re an outstanding soldier and have the potential to be a great NCO. But that doesn’t mean you belong in the army. Not everyone does.” Like wtf does that even mean? Also, sorry about the rant. My head is a mess. I knew this was a possibility but I’ve been working hard with my doctors on top of the PT and I’m sooooo close to being done and my NCOs were even making future plans for me cause they knew by next month with the rate I had been at these last 2 months I would be done with ABCP. And my commander just had me on this “initiation does not mean separation” bullshit belief. He said it every month when I met with him. And then BAM. I’m gone.
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If you have orders cut then that's it. It's hard for a commander to justify why they have a Soldier flagged for ABCP/APFT for over a year. These flags are reviewed at the Brigade and even Division level when they go over six months in length. At that point your Commanders bosses are pressuring him/her to separate you.
Your commander did you a solid by reinitiating your ABCP several months after your first weigh in, either that or the admin portion wasn't followed up on correctly and they decided to restart the process. It happens more than you'd think. Also, height and weight requirements were never suspended, only the requirements to conduct an APFT every six months. People with failing APFTs still have to take an APFT and pass, so if you had a failing APFT along with your ABCP that's two reasons your Brigade and Battalion level Commanders would be pushing for your separation.
You can always come back down the road with a waiver if this is what you want to do.
Your commander did you a solid by reinitiating your ABCP several months after your first weigh in, either that or the admin portion wasn't followed up on correctly and they decided to restart the process. It happens more than you'd think. Also, height and weight requirements were never suspended, only the requirements to conduct an APFT every six months. People with failing APFTs still have to take an APFT and pass, so if you had a failing APFT along with your ABCP that's two reasons your Brigade and Battalion level Commanders would be pushing for your separation.
You can always come back down the road with a waiver if this is what you want to do.
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SFC (Join to see)
CPL (Join to see) the fact is that you haven't passed APFT HT/WT requirements in over a year. Even if your flags were "re-aged" to a later date, you have not been in compliance for a very long time. JAG didn't tell you that you shouldn't have been chaptered, JAG is the one who processed your chapter paperwork and approved it. TDS may have told you that you shouldn't be chaptered, but they are Trial Defense Services and their job is to defend you. Their job is to argue on your behalf.
No matter what the barracks lawyers may be feeding you, a couple of facts are insurmountable:
1. You have been in non compliance over a year now.
You're a PFC so it's reasonable to believe you may have never passed in your career, maybe you have, but it has been over a year now so it's reasonable to assume it's been at least most of your Army career at this point.
2. You've been flagged over six months.
Your CO has to justify to the battalion commander and CSM as well as to the Brigade Commander and CSM why you aren't being separated. Your CO has to stick their neck out and fight his superiors to explain why you should be retained. Your CO only gets so many magic bullets to spend with their boss and you haven't explained why your CO should spend one on you.
3. The regulation requires your CO to separate you.
Again, your CO would have to argue with their boss and their boss's boss as to why it's in the best interest of the Army to violate the regulation. Commanders do have that discretion to a point, but up until the last minute your command team didn't see any significant improvement.
4. JAG is the one who approved your separation.
Your counseling prior to when the flag was restarted don't mean anything. They may be in the packet but JAG won't accept them. JAG is very strict and nit-picky when it comes to ABCP chapters. Weigh-ins were missed and so the time line had to be restarted.
5. Your Battalion Commander didn't separate you.
The Brigade Commander is the Separation authority for your chapter. Your BN CDR can't push a chapter packet without JAG approval. They also aren't the ones who separate you, your Brigade Commander is the one who approves it. Your BN CDR only submits the request to separate.
These are the facts of the case. How you feel about remedial PT or that you were mistakenly told that the ABCP was suspended do not change any of these facts. In order for you to alter the course of your separation you will need to approach the Brigade Commander, and ask them to suspend the separation. The chapter was performed and completed entirely IAW AR 600-9 and AR 635-200, so you can't argue that you were treated unjustly. The ONLY way to fight or stop your separation is to request to the Separation Authority (first O6) to suspend the separation (allowable for up to one year IAW AR 635-200) and somehow convince them that it is in the best interest of the Army to do so.
No matter what the barracks lawyers may be feeding you, a couple of facts are insurmountable:
1. You have been in non compliance over a year now.
You're a PFC so it's reasonable to believe you may have never passed in your career, maybe you have, but it has been over a year now so it's reasonable to assume it's been at least most of your Army career at this point.
2. You've been flagged over six months.
Your CO has to justify to the battalion commander and CSM as well as to the Brigade Commander and CSM why you aren't being separated. Your CO has to stick their neck out and fight his superiors to explain why you should be retained. Your CO only gets so many magic bullets to spend with their boss and you haven't explained why your CO should spend one on you.
3. The regulation requires your CO to separate you.
Again, your CO would have to argue with their boss and their boss's boss as to why it's in the best interest of the Army to violate the regulation. Commanders do have that discretion to a point, but up until the last minute your command team didn't see any significant improvement.
4. JAG is the one who approved your separation.
Your counseling prior to when the flag was restarted don't mean anything. They may be in the packet but JAG won't accept them. JAG is very strict and nit-picky when it comes to ABCP chapters. Weigh-ins were missed and so the time line had to be restarted.
5. Your Battalion Commander didn't separate you.
The Brigade Commander is the Separation authority for your chapter. Your BN CDR can't push a chapter packet without JAG approval. They also aren't the ones who separate you, your Brigade Commander is the one who approves it. Your BN CDR only submits the request to separate.
These are the facts of the case. How you feel about remedial PT or that you were mistakenly told that the ABCP was suspended do not change any of these facts. In order for you to alter the course of your separation you will need to approach the Brigade Commander, and ask them to suspend the separation. The chapter was performed and completed entirely IAW AR 600-9 and AR 635-200, so you can't argue that you were treated unjustly. The ONLY way to fight or stop your separation is to request to the Separation Authority (first O6) to suspend the separation (allowable for up to one year IAW AR 635-200) and somehow convince them that it is in the best interest of the Army to do so.
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CPL (Join to see)
SFC (Join to see) I do understand what you were saying. However, also, as stated above I was also being treated and it was documented and present to the commander for a temporary medical condition that directly caused rapid weight gain and the inability to lose it. Also, IAW AR 600-9 a soldier being treated for a temporary medical condition that directly causes weight gain or the inability to lose weight will be afforded time not to exceed 12 months to resolve the issue while on ABCP but will not face any unfavorable actions. My commander was aware and had copies of all of this as well as my NCOs keeping him updated on my current medical condition and procedures.
Also, I was told by my commander that it was my BN Commander so I will deffinetley have to look into it. I was never given my approved chapter packet and I am still waiting on it(I’m supposed to start clearing Tuesday).
I do appreciate your advice. But I also assure you that I have not speak English to any barrack lawyers. Yes, I asked for advice on here on what I can do. Because as a junior enlisted soldier, I’m wasn’t aware of a lot of the resources I’ve learned about these last few days. However those I have actually consulted on my case have been TDS, IG, and the SJA from on the installation to review it and my situation And was told by all 3 they aren’t sure how it got passed my units legal because I am being separated unjustly and the initiation of the chapter as well as most of the paperwork were not done IAW AR 600-9 and AR 635-200. I guess it’s harder to explain on here if you haven’t actually seen or reviewed everything. I do understand the regulation. I do understand the position commanders get put into when they have a soldier who is flagged for extended periods of time. However due to the temporary medical condition, I should have not have recommended for separation in the first place. I didn’t post because I wanted to fight the flag. I posted because I wanted to know what options I had on fighting this. I posted my situation for some detail so I didn’t get bashed for being a “fatass” like so many other people do on here. I have since being diagnosed with my condition lost the weight and currently within the standard before my time for “recovering” from it is even up. So thank you for your advice on speaking withe the BDE Commander and for explaining the chapter process. I did know the regulation. I just needed to know how to fight it and who I needed to go to or talk to.
Also, I was told by my commander that it was my BN Commander so I will deffinetley have to look into it. I was never given my approved chapter packet and I am still waiting on it(I’m supposed to start clearing Tuesday).
I do appreciate your advice. But I also assure you that I have not speak English to any barrack lawyers. Yes, I asked for advice on here on what I can do. Because as a junior enlisted soldier, I’m wasn’t aware of a lot of the resources I’ve learned about these last few days. However those I have actually consulted on my case have been TDS, IG, and the SJA from on the installation to review it and my situation And was told by all 3 they aren’t sure how it got passed my units legal because I am being separated unjustly and the initiation of the chapter as well as most of the paperwork were not done IAW AR 600-9 and AR 635-200. I guess it’s harder to explain on here if you haven’t actually seen or reviewed everything. I do understand the regulation. I do understand the position commanders get put into when they have a soldier who is flagged for extended periods of time. However due to the temporary medical condition, I should have not have recommended for separation in the first place. I didn’t post because I wanted to fight the flag. I posted because I wanted to know what options I had on fighting this. I posted my situation for some detail so I didn’t get bashed for being a “fatass” like so many other people do on here. I have since being diagnosed with my condition lost the weight and currently within the standard before my time for “recovering” from it is even up. So thank you for your advice on speaking withe the BDE Commander and for explaining the chapter process. I did know the regulation. I just needed to know how to fight it and who I needed to go to or talk to.
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SFC (Join to see)
CPL (Join to see) if I remember correctly from what I read, you had your medical issue after you were flagged. Your provider must write a profile stating how long you will be unable to meet ABCP and an expected date that you will be capable of meeting ABCP. The day after that profile expires and you are expected to meet height and weight, if you do not, then you are not in compliance. You were flagged prior to your medical issue, you can't be unflagged just because of your medical issue. The regulation is written so that if are not flagged, then have a medical issue, you will not be flagged. It's the se with pregnancy. If you passed ABCP and APFT prior to your pregnancy profile you can't be flagged while on profile. If you were flagged prior to the profile you will not be unflagged. If you are still under your profile you should not be separated for ABCP. However...
Then there is the issue of your APFT. You are still required to be separated for that if you don't pass.
My suggestion is that if you want to convince your BDE CDR to suspend your separation and rescind your separation orders, you need to show them a recent passing APFT and a recent 5501with a BF% that is tolerably close to the standard. You'll also need the support of your company and battalion command teams. No Brigade Commander is going to overrule their subordinate Commanders. If IG actually found that your chapter went against the regulation then they would have alerted your Brigade Commander, as well as the General, and addressed it with your Commanders. It's safe to assume that on closer inspection they found the chapter to be IAW Army policy and regulation. So, when you approach this, your elevator pitch needs to be that it's in the Armys best interest to give you a second chance, not that your chapter is unjust or wrong. Because, I can assure you, if you did have enough time to request a separation board, the board would approve your separation. Army leadership views physical fitness and height/weight as a personal responsibility for Soldiers. So, in order to overcome this, you will need to show that you were personally responsible for your previous failures and that you are now personally responsible for your current (near) success
Then there is the issue of your APFT. You are still required to be separated for that if you don't pass.
My suggestion is that if you want to convince your BDE CDR to suspend your separation and rescind your separation orders, you need to show them a recent passing APFT and a recent 5501with a BF% that is tolerably close to the standard. You'll also need the support of your company and battalion command teams. No Brigade Commander is going to overrule their subordinate Commanders. If IG actually found that your chapter went against the regulation then they would have alerted your Brigade Commander, as well as the General, and addressed it with your Commanders. It's safe to assume that on closer inspection they found the chapter to be IAW Army policy and regulation. So, when you approach this, your elevator pitch needs to be that it's in the Armys best interest to give you a second chance, not that your chapter is unjust or wrong. Because, I can assure you, if you did have enough time to request a separation board, the board would approve your separation. Army leadership views physical fitness and height/weight as a personal responsibility for Soldiers. So, in order to overcome this, you will need to show that you were personally responsible for your previous failures and that you are now personally responsible for your current (near) success
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CPL (Join to see)
SFC (Join to see) thank you again SFC Boyd for your guidance. I will take your advice as I have everyone else’s. I will see what happens tomorrow I guess considering IG just took my report Friday afternoon and said that command would be contacted by them Monday morning. So thank you for your help. I really do appreciate it.
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I recommend you go back to TDS. TDS can speak with MAMC's legal department and get a strait answer for you on the status. (not sure this would happen before Monday)
If for some reason the chapter goes through and you are discharged, it will be honorable and you can reenlist at a later date - gives you more time to get in shape.
If for some reason the chapter goes through and you are discharged, it will be honorable and you can reenlist at a later date - gives you more time to get in shape.
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This is a tough one. The commander may be looking at this from another angle. If the BDE commander signed the packet it is usually approved by the BDE legal team. I am curious how this came out. I have discharged quite a few. I have never seen one that was signed by a BDE Commander get overturned.
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CPL (Join to see)
The approval was signed by the Battalion Commander not BDE Commander. I was instructed to use the open door policy and speak to both the Battalion commander and the BDE commander. I can’t go into exact details right now but between going to TDS and IG I found out a lot was done wrong on the legal side of this and the regulation side regarding not just the chapter but the entire program. So now it’s racing against the clock with IG and TDS to make someone listen and actually sit and look at my paperwork and see what everyone else has seen(my packet has been looked over by a few legal teams on post and each have said the same thing, that they wouldn’t have excepted the packet, that I was restarted(not just because of the counceling but the no ht/wt for 4 months automatically restarted me because my company commander chose not to conduct ht/wt March-July). So now, it’s trying to get someone above my battalion commander to suspend the approval of separation and assure the regulations are followed. It’s hard trying to explain everything on here because I can’t post certain details just give a background and ask for advice. So I’m planning for the worst but hoping for the best while fighting and exhausting all my options. I appreciate you’re feedback. Anything and everything helps right now to try to understand especially since no one is telling me anything
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CPT (Join to see)
CPL (Join to see) - The whole process has been challenging with the new ACFT. The BDE Commander is the final say. Sometimes the BC can recommend but the BC is the one that will have his legal team review it. You could open door it but that isn't the proper channel. You should have been afforded an opportunity to do a memo on your behalf. Usually TDS will help you with it. You can still open door if you like. I do commend you on your approach on this. When Soldiers are in this process they usually don't make a plan if they get separated. I have seen some Soldiers transition into a bad situation. I would take advantage of all of the resources you have available.
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Reach out to TDS again, and ask about preparing a letter through your chain of command to brigade requesting a suspension of separation. You will need character references from those you have worked with who know your character as a Soldier. I suggest an array of NCO and officer references.
Additionally enclose all supporting documents that show your improvement and medical issues.
Don't stop fighting until the last second, and even if you go down you can still get back in just keep at it.
Additionally enclose all supporting documents that show your improvement and medical issues.
Don't stop fighting until the last second, and even if you go down you can still get back in just keep at it.
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I plan on doing this first thing in the morning. I attempted to call TDS but the closed at 1500 and I called at 1459(when I got realeased and calmed down a bit). The more my NCOs and I go through my paperwork the more we don’t understand why he did it and how it could have gotten approved and done so fast and without hesitation. I’m taking my time this evening to gather everything together yet again along with the regulations and medical documents to see why can be done early tomorrow morning. One of my NCOs did try to say “they are cutting orders so it’s too late to try to even fight anything now” but I’m also being told but some others that I can still fight it because I haven’t put processed at all and my orders can be put on hold or canceled if there needs to be more of an investigation.
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There was a common misconception with COVID; ABCP was not suspended, if you were on it, you remained on it until successful removal from it. All policies and procedures surrounding ABCP were still in effect and required proper mitigation.
If you were on ABCP and failed to make progress or regressed, you failed the program and are subject to separation. Not much TDS can do for you if you had 3 weigh ins, and only made progress on 1.
If you were on ABCP and failed to make progress or regressed, you failed the program and are subject to separation. Not much TDS can do for you if you had 3 weigh ins, and only made progress on 1.
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CPL (Join to see)
SSG, I responded to your message. I had more than 3 weigh ins. I had 5 pre covid. Then a gap of nothing because of his decision to suspend the program, then from July-now I have made progress on every single one EXCEPT the one in September that he used to Initiate the chapter claiming it was my 3rd failure on the program. Both TDS and IG said that while on the program, you need to be on the program ACTIVELY for 6 consecutive months or more and have 3 or more non consecutive failure to make progress. That’s what he’s trying to chapter me on. But I was never on the program actively for 6 consecutive months. He suspended it before then. The other way is 2 consecutive failures to make progress, but I have never had one of those either.
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