IN THE CASE OF: .
BOARD DATE: 23 JULY 2009
DOCKET NUMBER: AR20090004075
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, in effect, that items 25 (Separation Authority),
26 (Separation Code), and 28 (Narrative Reason for Separation) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show he was discharged for hardship instead of dependency.
2. The applicant states that he was released from the military in order to help his mother financially and physically and that his DD Form 214 states that he was released for dependency. He contends that his DD Form 214 must be corrected in order for him to receive medical benefits.
3. The applicant provides no 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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted in the Regular Army on 25 July 1985 for a period of
3 years. He successfully completed basic combat training and advanced individual training in military occupational specialty 71D (legal specialist).
3. On 3 April 1987, the applicant submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 6, for hardship. In a letter, dated 7 April 1987, the applicant's commanding officer stated, in pertinent part, that the applicant's mother was under an extreme financial burden due to her doctor fees, that she was unable to pay her medical bills since she was on a fixed income, that the applicant had three sisters who were unable to assist their mother due to their own financial responsibilities, and that it only left the applicant as a means for his mother's survival.
4. On 17 April 1987, the separation authority approved the applicant's request for a hardship discharge under the provisions of Army Regulation 635-200, paragraph 6-3a. He directed that the applicant be furnished an honorable discharge.
5. Item 25 on the applicant's DD Form 214 shows the entry "Para [paragraph]
6-3a, AR [Army Regulation] 635-200. Item 26 on his DD Form 214 shows the entry "KDH." Item 28 on his DD Form 214 shows the entry "Dependency."
6. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from the Army. Paragraph 6-3 of Army Regulation 635-200 states that Soldiers of the Active Army and the Reserve Components may be discharged or released because of genuine dependency or hardship. Paragraph
6-3a states that dependency exists when death or disability of a member of a Soldier's (or spouse's) immediate family causes that member to rely upon the Soldier for principal care or support. Paragraph 6-3b states that hardship exists when, in circumstances not involving death or disability of a member of a Soldiers (or spouses) immediate family, separation from the Service will materially affect the care or support of the family by alleviating undue and genuine hardship.
7. Army Regulation 635-5-1 (Separation Program Designator Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons. The regulation, in effect at the time, stated the reason for discharge based on separation code KDB is Hardship and the regulatory authority is Army Regulation 635-200, paragraph 6-3b.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contentions were carefully considered and appear to have merit.
2. Evidence of record shows the applicant requested a hardship discharge. However, the separation authority erroneously approved his request for hardship under the provisions of Army Regulation 635-200, paragraph 6-3a for dependency. As a result, items 25, 26, and 28 on his DD Form 214 show that he was discharged for dependency. Therefore, it would be appropriate to correct item 25 on his DD Form 214 to show he was discharged under the provisions of Army Regulation 635-200, paragraph 6-3b; to correct item 26 to show the entry "KDB;" and to correct item 28 to show the entry "Hardship."
BOARD VOTE:
____X____ ____X____ ___X_____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:
a. deleting the entries in items 25, 26, and 28 on his DD Form 214;
b. adding the entry "Paragraph 6-3b, Army Regulation 635-200" in item 25 on his DD Form 214;
c. adding the entry "KDB" in item 26 on his DD Form 214; and
d. adding the entry "Hardship" in item 28 on his DD Form 214.
_______ _ 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) AR20090004075
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ABCMR Record of Proceedings (cont) AR20090004075
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