IN THE CASE OF:	  

		BOARD DATE:	        5 August 2008

		DOCKET NUMBER:  AR20080006511 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of the narrative reason for separation to show "hardship" instead of "parenthood."

2.  The applicant states the wrong narrative reason for separation was entered on his records due to an administrative oversight at the unit level.

3.  The applicant did not provide any additional documentary evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, 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 Army Board for Correction of Military Records (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.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.


2.  With prior enlisted service in the U.S. Air Force (USAF) and the Army National Guard (ARNG), the applicant's records show he enlisted in the Regular Army for a period of 3 years on 3 October 1995 and held military occupational specialty (MOS) 91B (Medical Specialist).  The highest rank/grade he attained during this period of military service was specialist (SPC)/E-4.  He was assigned to the 229th Aviation Group, Fort Bragg, North Carolina.

3.  The applicant's awards and decorations include the Army Lapel Button, the National Defense Service Medal, the Army Service Ribbon, the Air Force Training Ribbon, and the Expert Marksmanship Qualification Badge with Rifle Bar.

4.  On 26 December 1996 and subsequent to his separation from his spouse, the applicant was counseled by his first line supervisor regarding the need to have a workable Family Care Plan for the care of his son within 30 days.

5.  On 27 January 1997, the applicant submitted an incomplete Family Care Plan and indicated that he was unable to designate/find any person(s) to care for his family member during duty hours, alerts, field duty, roster duty, and periods of temporary travel. 

6.  On 27 January 1997, the applicant was counseled by his immediate commander for failing to submit a Family Care Plan.  The applicant concurred with the immediate commander's reason for this counseling and remarked that he failed to complete a Family Care Plan within the allowed timeframe and concurred with the decision to separate him.

7.  On 18 February 1997, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 5-8 of Army Regulation 635-200 (Personnel Separations), for minor disciplinary infraction-inability to obtain a family care plan (parenthood).

8.  On an unknown date between 18 February 1997 and 24 February 1997, the applicant acknowledged receipt of the commander's intent to separate him.  He subsequently consulted with legal counsel on 24 February 1997, and was advised of the basis for the contemplated separation due to parenthood, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He indicated that he understood that because he had less than six years of total active and/or reserve military service, he was not entitled to have his case heard by an administrative board and elected not to submit a statement on his own behalf.

9.  On 25 February 1997, the applicant’s immediate commander recommended separation action against him in accordance with paragraph 5-8 of Army Regulation 635-200 for parenthood.  The immediate commander further remarked that the applicant had no useful potential for continued service under conditions of full mobilization.  The immediate commander further recommended an honorable discharge.

10.  On 25 February 1997, the applicant’s intermediate commander recommended approval of the applicant’s discharge and also recommended he receive an honorable discharge.

11.  On 26 February 1997, the separation authority approved the applicant’s discharge, under the provisions of chapter 5 of Army Regulation 635-200 by reason of parenthood, inability to provide an adequate Family Care Plan and directed the applicant be furnished an Honorable Discharge Certificate.  Accordingly, the applicant was discharged on 21 March 1997.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged with an honorable character of service.  This form further confirms he completed a total of 1 year, 5 months, and 19 days of creditable military service.

12.  Paragraph 5-8 of Army Regulation 635-200, in effect at the time, governed separation because of parenthood.  It stated, in pertinent part that Soldiers would be considered for involuntary separation when parental obligations interfere with fulfillment of military responsibilities.  Specific reasons for separation because of parenthood included inability to perform prescribed duties satisfactorily, repeated absenteeism, late for work, inability to participate in field training exercises or perform special duties such as Charge of Quarters (CQ) and Staff Duty Noncommissioned Officer (SDNCO), and nonavailability for worldwide assignment or deployment according to the needs of the Army.  Separation processing may not be initiated under this paragraph until the Soldier had been adequately counseled concerning deficiencies and had been afforded the opportunity to overcome them.  The notification procedure would be used for separation under this paragraph.  An honorable discharge was normally appropriate for separation under this paragraph.

13.  Chapter 6 of Army Regulation 635-200 governs separation because of dependency or hardship.  Paragraph 6-3 states that Soldiers of the Active Army and the Reserve Components may be discharged or released because of genuine dependency or hardship.  The regulation provides that hardship exists when, in circumstances not involving death or disability of a member of a Soldier’s (or 
spouse’s) immediate family, separation from the Service will materially affect the 
care or support of the family by alleviating undue and genuine hardship.  Under this provision for hardship discharge, parenthood of married service members and sole parenthood are the two conditions under which separation may be granted.  

14.  Paragraph 6-3b(1) of Army Regulation 635-200 provides that a married Soldier who becomes a parent by birth, adoption or marriage (stepparent), and whose child (or children) under 18 years of age reside within the household, may apply for separation under hardship. The Soldier must submit evidence that the roles of parent and Soldier are incompatible and that they cannot fulfill their military obligation without neglecting the child or children.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the narrative reason for his separation should show "hardship" instead of "parenthood."

2.  There is no evidence in the applicant’s records and the applicant did not provide substantiating evidence that show he was undergoing a family hardship or that he reported such hardship to his chain of command or solicited help from the support channels available at his installation.  Furthermore, there is no evidence that the applicant voluntarily requested separation for hardship.

3.  The evidence of record shows that the applicant was counseled regarding the need to make the necessary arrangements for the care of his family member and was given ample time to do so; however, he was unable to make arrangements or designate a guardian for his family member, thus becoming non-available for world-wide Army duty.  Accordingly, his immediate commander recommended separation action against him for parenthood.  Absent the parenthood issue, there was no fundamental reason to process the applicant for discharge.  The underlying reason for his discharge was parenthood, thus making it the only valid narrative reason for separation permitted under that paragraph.

4.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.


															XXX
      ______________________
               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.

ABCMR Record of Proceedings (cont)                                         AR20080006511



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ABCMR Record of Proceedings (cont)                                         AR20080006511



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