BOARD DATE: 26 August 2009
DOCKET NUMBER: AR20090006129
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 that the reason for his separation be changed to hardship.
2. The applicant states he was discharged due to the death of his mother and he had to care for his siblings because his father was unable to work and provide for them.
3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).
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 served in the Regular Army from 15 May 1984 through 27 February 1985.
3. The records does not contain any documentation related to the applicant's separation except his separation orders and DD Form 214.
4. Headquarters, U.S. Army Training Center and Fort Jackson Order 229-032, dated 27 November 1984, reassigned the applicant for the purpose of receiving a hardship discharge.
5. The DD Form 214 shows the applicant was honorably relieved from active duty under Army Regulation 635-200, paragraph 6-3A for dependency.
6. Army Regulation 635-200 provides the following pertinent information:
a. Soldiers on active duty may be discharged or released because of genuine dependency or hardship;
b. paragraph 6-3a, states dependency exists when a death or disability of a member of a Soldier's (or spouse's) immediate family causes the Soldier to be relied upon for principal care or support; and
c. paragraph 6-3 b, a hardship exists when in circumstances, not involving death or disability of a member of the 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant states he was discharged due to the death of his mother and he had to care for his siblings because his father was unable to work and provide for them.
2. The applicant states that he was released from active duty due to the death of his mother which is the criteria for a dependency discharge as opposed to a hardship discharge as defined in the regulation.
3. 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.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___x____ ___x____ ___x____ 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.
_______ _ __x_____ ___
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) AR20090006129
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ABCMR Record of Proceedings (cont) AR20090006129
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