PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 11 October 2001
         DOCKET NUMBER: AR2001056850


         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. JoAnn H. Langston		Chairperson
Mr. Mark D. Manning		Member
Mr. Jose A. Martinez		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.

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2. The applicant requests, in effect, that the reason for his discharge be changed from “parenthood” to “early retirement” and that he be compensated for a heart condition.

3. The applicant states, in effect, that he was eligible for retirement under Temporary Early Retirement Authority (TERA) provisions of law but was denied due to a shortage of personnel in his military occupational specialty (MOS) of 12B (Combat Engineer). He states that he was required to establish and submit a family care plan based on the instability of his spouse but due to extenuating and severe circumstances he was unable to do so. As a result, his chain of command indicated that they had no choice but to initiate involuntary separation action against him, under the provisions of paragraph 5-8, Army Regulation
635-200, by reason of parenthood. He also indicates that during his separation processing, while he was on terminal leave but still a member of the Army, his MOS was included in those that authorized members to apply for early retirement under the TERA program.

4. In addition, the applicant indicates that in order to complete the necessary service required to receive retired pay he attempted to enlist in the United States Army Reserve (USAR) but was denied due to heart problems. He finally comments that if his heart problems were noted during his attempt to join the USAR they should have been determined to be service related and he should be compensated accordingly.

5. The applicant’s military records show that on 10 April 1979 he enlisted in the Army for 3 years. He completed training in and was awarded military occupational specialty (MOS) 12B (Combat Engineer). He continuously served on active duty for 15 years, 8 months, and 10 days until being honorably discharged on 4 January 1995.

6. The record confirms that the highest rank the applicant attained while serving on active duty was sergeant first class/E-7 (SFC/E7). It also shows that during his active duty tenure he earned the following awards: Southwest Asia Service Medal with 3 bronze service stars; Army Commendation Medal (4^th OLC); Army Achievement Medal (1^st OLC); Army Good Conduct Medal (5^th Award); National Defense Service Medal; Humanitarian Service Medal; and Kuwait Liberation Medal.

7. In September 1994, while assigned to Fort Knox, Kentucky, the applicant’s unit commander notified him that he needed to establish a valid family care plan for his wife based on several incidents she was involved in, between 9 March and 3 April 1994, which showed that she was unstable and incapable of caring for herself.

8. On 15 April 1994, the applicant’s chain of command along with the Provost Marshal (PM), a lawyer from the Office of the Staff Judge Advocate (OSJA), the installation Adjutant General (AG), and garrison sergeant major met to determine a solution to the applicant’s problems. On 16 May 1994, the applicant was not deployed due to the instability of his spouse and on 7 September 1994, the applicant was returned from a field training exercise early to take care of his wife.

9. On 27 September 1994, the applicant was notified by his unit commander that he would be required to establish a valid family care plan based on his wife’s inability to care for herself, as evidenced by her repeated incidents of misconduct, attempted suicide, and disorderly conduct, which rendered him
non-deployable. The unit commander arrived at this determination based on the fact that some of the incidents his wife was involved in had forced the applicant to return from field exercises early. The applicant informed his commander that there was no one other than him to care for his spouse and that he was unable to establish a family care plan for his wife.

10. On 4 November 1994, the unit commander notified the applicant that, based on his inability to establish a family care plan for his spouse, separation action was being initiated against him under the provisions of paragraph 5-8, Army Regulation 635-200, for parenthood. The applicant acknowledged receipt of the separation action, consulted counsel, waived the right to consideration of his case by an administrative separation board, and elected not to submit a statement in his own behalf.

11. The separation action was approved by the appropriate authority and on
4 January 1995, the applicant was honorably discharged from the Army. At the time of his separation, he had completed a total of 15 years, 8 months, and
25 days of active military service. A review of his records failed to reveal any derogatory information.

12. Army Regulation 600-20, paragraph 5-5, provides, in pertinent part, that a soldier whose spouse is incapable of self-care or is otherwise physically, mentally, or emotionally disabled so as to require special care or assistance is required to establish and submit a valid family care plan.

13. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel and paragraph 5-13 provides, in pertinent part, that soldiers will be considered for involuntary separation when parental obligations interfere with the fulfillment of military operations. It further specifies that failure to establish a family care plan required under the provisions of Army Regulation 600-20 is a sufficient basis to be processed for separation under parenthood provisions.

14. Title 10 of the United States Code, section 3914 provides the legal authority for the Secretary of the Army to retire an enlisted member of the Army who has at least 20, but less than 30, years of service. Public Law 102-484 provided Temporary Early Retirement Authority (TERA) by authorizing the Secretary of the Army, during the period beginning 23 October 1992 and ending 1 October 1995, to apply this section to an enlisted member with at least 15 but less than 20 years of service by substituting ''at least 15'' for ''at least 20.'' TERA authority was subsequently extended to cover the period through 1 October 2001 via Public Law 105-206.

15. Military Personnel (MILPER) Message Number 94-200, 12 May 1994, Subject: “FY95 Enlisted Early Retirement Program” prescribed eligibility requirements and application procedures for early retirement for enlisted soldiers. It contained the eligibility criteria for the Fiscal Year 1995 Enlisted Early Retirement Program. It established, in effect, that soldiers with a minimum of
15 years of active service who held the rank of SFC/E-7 and an MOS of 12B were eligible to submit requests for early retirement. On 4 August 1994, this grade and MOS were removed from eligibility for early retirement but on
30 December 1994, authority for early retirement was reinstated.

CONCLUSIONS:

1. A comprehensive review of the applicant’s entire service record contained no ratings, evaluations, or information/comments that could be construed to be negative, other than those related to his separation for parenthood. This confirms that the sole basis for his separation from the Army was his failure to provide an adequate family plan for his wife. Lacking any other documented indicators of substandard performance and/or potential, the Board finds the applicant’s method of separation was inequitable and unjust.

2. TERA was codified in law in October 1991 and was in effect during the timeframe the applicant was processed for involuntary separation based on his inability to establish a valid family care plan for his spouse. The record confirms the applicant completed over 15 years of honorable active military service prior to the date he was notified that separation action was being initiated against him and he was qualified to retire for length of service under TERA provisions of the law.

3. The decision of the applicant’s chain of command to separate him for failure to provide an adequate family care plan for his wife was accomplished in accordance with applicable regulations. However, based on his overall record of service, the Board concludes it would have been more appropriate for his chain of command to counsel and assist him in applying for early retirement under the provisions of the FY95 Enlisted Early Retirement Program prior to separation action being initiated or some point prior to his discharge date.
4. In addition, the Board notes the applicant’s contention that he should be compensated for his heart problem. However, in the absence of evidence to the contrary and given he was cleared for separation by competent medical authority, the Board presumes the applicant met medical retention standards and was not eligible for disability compensation at the time of his separation from active duty.

5. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by showing that on 4 January 1995 the individual concerned was released from active duty by reason of early retirement under the provisions of the FY95 Enlisted Early Retirement Program in lieu of the current parenthood discharge of the same date he now holds; that on the following day he was placed on the Retired List in the rank and pay grade of SFC/E-7; by providing him all back pay and allowances due as a result, minus any monies received as a result of his involuntary separation; and by issuing him a corrected separation document that reflects these changes.

2. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

__JHL___ __MDM__ __JAM__ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  __JoAnn H. Langston _
                  CHAIRPERSON

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INDEX

CASE ID	AR2001056850
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2001/10/11
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.	136.0000
2.
3.
4.
5.
6.