MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 1 November 2001
         DOCKET NUMBER: AR2001059695

         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. Carl W. S. Chun		Director
Ms. Deyon D. Battle		Analyst

The following members, a quorum, were present:

Mr. Walter T. Morrison		Chairperson
Mr. Arthur A. Omartian		Member
Mr. Curtis L. Greenway		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)

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APPLICANT REQUESTS: That she be paid for 3 years of time that she was unjustly not allowed to serve while she was in the Army.

APPLICANT STATES: That there was no valid reason for her to have been given an order to complete a family care plan. She states that she already had a valid family care plan on file from when she was in the Air Force. She goes on to state that there was no proof that her husband lacked the mental ability to care for their children. She states that she was not allowed to challenge any decisions made on her behalf. She states, in effect, that after she completed her service with the Air Force she met and married her husband while they both were attending college. She states that she wanted to be the provider for her family; however, she was denied reenlistment in the Air Force as a result of a bad credit report. She further states that she had two children when she enlisted in the Army and that the Army recruiter was aware of the domestic situation between her husband and herself, therefore, she decided to get marital counseling when she got to her permanent duty station. She continues by stating that she continued to experience marital problems until she was barred from reenlistment and ordered to complete more counseling for victims of domestic violence. She states that the Army Family Support Services offered her husband counseling, however he refused and the situation only got worse. She states that she was honorably discharged (involuntarily) for parenthood and she later found out that her husband was allowed to enlist in the Army. In support of her appeal she submits a copy of her Official Military Personnel File; a copy of her marriage certificate; a copy of her final judgment of divorce; and several other documents relating to situations that occurred after her discharge from the Army.

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

After she completed 5 years, 3 months and 11 days of total active service in the Air Force, on 28 October 1997, she enlisted in the Army for 4 years in the pay grade of E-4. She successfully completed her training as a patient administration specialist.

On 10 June 1998, the applicant was counseled by her senior noncommissioned officer (NCO) regarding a domestic dispute involving her and her husband that resulted in a vehicle being used against her as a weapon. During the counseling session, she was told that her husband had committed a serious offense and that she was to report to the sergeant major’s office where she would be notified in writing that she had 30 days to move out of post housing. She was also told that her chain of command had concerns for the welfare of her and her two children and that if she was allowed to remain in post housing her husband would not be




allowed to reside with her. She was told that if she allowed him to reside in housing with her she could be charged with disobeying a lawful order, which is subject to action under the Uniformed Code of Military Justice. The senior NCO stated that since she had expressed her intent to get a divorce, she would need a family care plan that would list her short term and long term care provider. The senior NCO concluded by stating that she had 30 days from the date of that counseling to submit a family care plan to her commander.

On 15 June 1998, the applicant was counseled for failure to be at her appointed place of duty (formation). During the counseling session, she was told that she was to be present for formation and that failure to do so would result in elimination action being initiated against her for unsatisfactory performance. She was reminded of the leave that she was given to complete all necessary provisions for enrollment of her children into a day care system and she was told that it was her responsibility to provide for her family.

On 16 June 1998, she was counseled for disobeying a lawful order because she failed to have a family care plan. The counseling form indicated that on the previous day (15 June 1998), she had been instructed to report to work without her child (having placed him in a day care). The applicant was told that she was responsible for her family and that her child would not be allowed to be present at her place of duty. She was provided with a family care plan packet and she was reminded that she had 30 days from her initial counseling (10 June 1998) to provide a family care plan. She was told that if she believed that she would be unable to provide the necessary documentation she could request a waiver of the 30 days and action to eliminate her from the Army would be initiated. She was also told that she was being barred from reenlistment and that she was not to leave her child unattended if she was unable to obtain childcare. She was further informed that failure to be at her appointed place of duty would result in disciplinary action and grounds for elimination from the Army for misconduct. She acknowledged receipt of the counseling statement indicating that she would take her children to family members if she were to be granted a weekend pass.

On 18 June 1998, the applicant was counseled for failure to be at her appointed place of duty. She was told that she was being placed on 3 days of advanced leave so that she could resolve her childcare issues. She was told by her commander that she should be present for duty at formation in proper uniform on 22 June 1998, at which time the 16 June 1998 counseling would be reviewed.

On 25 June 1998, the applicant signed and returned the family care plan checklist indicating that she was receiving family care plan counseling by her commander because her current family status was that she was a soldier whose



spouse was incapable of self-care or was otherwise physically, mentally, or emotionally disabled so as to require special care or assistance. She also indicated that she understood that there were voluntary and involuntary procedures for her separation from military service when her parental responsibilities interfered with the performance of her military duties.

The applicant returned her family care plan checklist on 9 July 1998 and more than half of the required documentation were either not returned to the commander or still needed notary seals.

On 31 July 1998, the applicant was counseled for failure to be at formation. She was told that if she missed or was late for another formation, no matter what time the formation is called, it would cause her to be eliminated from the Army for unsatisfactory performance. The applicant nonconcurred with the counseling statement indicating that she was present for formation and was not late. She stated that she had witnesses that could provide statements in her behalf. She further stated that she was tired of being pushed around and that someone other than herself needed to tell her husband that he needed help. She went on to state that she was getting no support from her chain of command and all that she wanted to do was to protect her children. She stated that others had missed formation and brought children to alerts, but she was being put on display for circumstances that she did not create. She stated, in effect, that her company commander had it in for her and that nothing was ever done about the poor treatment that she had received. She concluded by stating that she wished to get out of the Army as soon as possible so that she could fix her own life.

The applicant was notified that action to eliminate her from the Army had been initiated under the provisions of Army Regulation 635-200, chapter 5, based on her inability to perform her duties due to parenthood. She acknowledged receipt of the notification on 27 August 1998 and, after consulting with counsel, she waived her rights and, although she indicated that statements in her own behalf were not included, she submitted a statement dated 10 September 1998. The statement included detailed descriptions of domestic verbal and physical disputes between her husband and herself.

The appropriate authority approved the request for discharge on 17 September 1998. Accordingly, on 15 October 1998, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 5, based on her inability to perform her duties due to parenthood. She had completed 11 months and 18 days of total active Army service and she was furnished an Honorable Discharge Certificate.




DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The actions by the Army in this case were proper, and there is no doubt to be resolved in favor of the applicant.

2. The Board has noted the applicant’s contentions. However, they are unsubstantiated by the evidence of record. The record clearly shows that the applicant was counseled numerous times regarding her responsibility to her children and her failure to provide an adequate family care plan. She was also granted advanced leave specifically for the purpose of seeking proper childcare for her children and she failed to do so.

3. She was not allowed to complete her 4-year tour of duty because she asked to be discharged so that she could fix her own life and because of her family problems, which clearly resulted in her inability to perform her duties. She was on active duty for 11 months and she was properly paid while she was on active duty. She is not entitled to any additional pay past her date of discharge from the Army and her inability to complete her 4-year tour of duty was no fault of the Army.

4. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

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

__ao____ __wtm __ __clg ___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001059695
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2001/11/01
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 283	128.0000
2.
3.
4.
5.
6.