PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 5 March 2002
         DOCKET NUMBER: AR2001064806


         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
Mrs. Nancy Amos		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Thomas B. Redfern, III		Member
Mr. Donald P. Hupman, Jr.		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 narrative reason for his separation and reenlistment (RE) code be changed to reflect he received a single-parent discharge.

3. The applicant states that he emigrated to the United States from Canada after having recently married an American. He enlisted in the Army in 1983. He became a citizen in 1986. In late 1987, his then-wife deserted him and their children while they were in Germany. He loved his combat-arms job but it was not practical after he became a single parent. He applied for a single-parent discharge but the process was stopped when it was discovered he had not been awarded custody of his children by a German court. It was then recommended that he seek a bar to reenlistment which would guarantee an immediate honorable discharge. He reluctantly agreed, thinking he was painted into a corner. He would like to be granted a single-parent discharge and not have the cloud of the bar over him forever.

4. The applicant’s military records show that he was married with stepchildren when he enlisted in the Regular Army on 9 March 1983. He completed basic training and advanced individual training and was awarded military occupational specialty 13B (Cannon Crewmember). On or about 7 April 1985 he departed for assignment to Germany on an unaccompanied tour and was assigned to the 2d Battalion, 28th Field Artillery. On 12 April 1985, he requested that his tour be changed to a with dependents tour. His request was approved and his family joined him in Germany.

5. The applicant was promoted to Sergeant, E-5 on 4 June 1986. He completed
the Basic Noncommissioned Officers Course (BNCOC) on 5 June 1987 and exceeded course standards.

6. On 19 July 1987, the applicant and his spouse entered into a Separation Agreement prepared by the Legal Assistance Office, Ansbach, Germany. The Agreement stated that the applicant would have custody of the children.

7. On 9 September 1987, a local bar to reenlistment was imposed on the applicant. The applicant’s commander, Captain B___, stated in the bar, “SGT ___ has no potential for advancement in the United States Army. His failure to manage his marital and family affairs has and continues to interfere with his ability to satisfactorily perform his duties. These family and marital difficulties have caused SGT ___ to miss a major field exercise and to be removed from his MOS skill-related job. For the good of the service and this unit I highly recommend that this bar to re-enlistment be approved.” The applicant elected not to submit a statement in his own behalf.

8. On 9 September 1987, the applicant requested immediate discharge as he perceived that he would be unable to overcome a locally-imposed bar to reenlistment.

9. On 10 September 1987, the bar to reenlistment was approved. On an unknown date, the applicant’s request for discharge was approved.

10. On 28 September 1987, the applicant’s commander, Captain B___, provided the applicant a letter of recommendation. In it Captain B___ stated that he had known the applicant for one year and his on-duty job performance had been superb. The applicant always fulfilled his obligations and responsibilities with the utmost professionalism and dedication. The commander recommended the applicant for any type of supervisory position, stating that he would be an asset to any company or organization.

11. On 29 September 1987, the applicant was discharged with an honorable characterization of service. The separation authority was Army Regulation 635-200, paragraph 16-5, the separation code (SPD) was KGF (voluntary discharge due to Department of the Army- or locally-imposed bar to reenlistment), the narrative reason for separation was locally imposed bar to reenlistment, and the reenlistment (RE) code was RE 4.

12. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 16-5b provides that a soldiers denied reenlistment by a locally-imposed bar to reenlistment may be voluntarily separated before their expiration term of service. Paragraph 6-3b(2) provides that soldiers who are sole parents, and whose children under 18 years of age reside within the household, may apply for separation under hardship. A “sole parent” is defined as a parent who is single by reason of never having been married, or is divorced or legally separated and has been awarded child custody by judicial decree or court order, or is a widow or widower. Paragraph 6-7b(5) states that sole parenthood resulting from divorce or legal separation will be substantiated by a judicial decree or court order awarding child custody to the soldier. SPD KDG (voluntary discharge due to parenthood of married service woman or sole parent) would be given along with an RE code of 3. Paragraph 5-3 states that the separation of soldiers for the convenience of the Government is the prerogative of the Secretary of the Army. SPD KFF (voluntary discharge, directed by service secretary) would be given when the authority for separation is paragraph 5-3.

13. On 15 October 1993, the Army Discharge Review Board (ADRB) denied the applicant’s request for a change in the narrative reason for separation.

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CONCLUSIONS:

1. The Board concludes that it would be equitable to change the applicant’s reason for separation.

2. The applicant had an exemplary record of service. He was promoted to Sergeant, E-5 in just over 3 years service. He completed BNCOC by exceeding course standards just 3 months prior to his discharge.

3. The applicant’s spouse left him around July 1987, leaving him with custody of his children. It appears that his command read the regulatory requirement for substantiating sole parenthood literally. The regulation states that sole parenthood resulting from divorce or legal separation will be substantiated by a judicial decree or court order awarding child custody to the soldier. The applicant’s Separation Agreement was prepared by the local legal assistance office, not by a court. Therefore, his command would not allow him to separate on a hardship, sole-parent discharge.

4. To circumvent the regulation, the applicant’s command imposed a bar to reenlistment on him, thus allowing him to request early discharge as perceiving himself as unable to overcome the bar. The dates of the bar to reenlistment, the request for discharge, and the approval of the bar to reenlistment reveal the bar for the subterfuge it was. The applicant’s request for discharge was prepared prior to the date the bar to reenlistment was approved. The commander’s 28 September 1987 letter of recommendation reveals to an even greater extent this subterfuge. This letter directly contradicts everything that was cited as the reason for the applicant’s discharge. The bar stated the applicant had no potential for advancement, that his marital and family affairs interfered with his ability to satisfactorily perform his duties, and that they caused him to miss a major field exercise. The letter stated the applicant would be an asset to any company or organization, that his job performance had been superb, and that he fulfilled his obligations and responsibilities with the utmost professionalism and dedication.

5. Although the applicant may not have met the regulatory standards for a sole-parent discharge, it is clear to the Board that neither did he meet the criteria for a bar to reenlistment. At this point in time, it would be equitable to show he was discharged under the provisions of Army Regulation 635-200, paragraph 5-3, Secretarial Authority. His separation code should be changed to KFF. His RE code should be changed to RE 3 (the same code he would have received had he received a sole-parent discharge.

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

RECOMMENDATION:

1. That the applicant’s Certificate of Release or Discharge from Active Duty, DD Form 214, be amended to show he was discharged under the provisions of Army Regulation 635-200, paragraph 5-3, with an SPD of KFF, an RE code of 3, and a narrative reason for separation of Secretarial Authority.

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

BOARD VOTE:

__fne___ __tbr___ __dph___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION



                           Fred N. Eichorn
                  ______________________
                  CHAIRPERSON

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INDEX

CASE ID	AR2001064806
SUFFIX
RECON
DATE BOARDED	20020305
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	19870929
DISCHARGE AUTHORITY	AR 635-200, ch 5
DISCHARGE REASON	A12.00
BOARD DECISION	(GRANT)
REVIEW AUTHORITY
ISSUES 1.	110.00
2.
3.
4.
5.
6.