IN THE CASE OF:	  

		BOARD DATE:	  26 January 2010 

		DOCKET NUMBER:  AR20090008044 


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 item 28 (Narrative Reason for Separation) of her DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed from sole parent to hardship.

2.  The applicant states that she went into the service with the intent to complete her term, but she had to leave early because of a divorce and having full custody of her son.  She wants item 28 to read "hardship" so she can receive care at the Department of Veterans Affairs (VA) hospital.  She states she completed only 1 year and 6 months of active duty and later completed 11 years in the Army Reserve, Army National Guard, and the Army National Guard Challenge Program.  The applicant continues to state that she requested to serve during the Gulf War four times, but she was denied because of the entry in item 28.  She would like to receive treatment at the VA hospital because Medicaid is not taking responsibility for her injury and workman's compensation is also denying responsibility.

3.  The applicant provides a copy of her DD Form 214 and her divorce decree in support of her 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.  The applicant enlisted in the Regular Army on 7 October 1986 for a period of 3 years.

3.  The applicant provided a copy of her divorce decree, dated 22 September 1987, which shows she was granted custody of her minor child.

4.  The applicant's separation packet is not available.  However, her DD Form 214 shows she was honorably released from active duty on 19 April 1988 under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 6-3b, by reason of sole parenthood.  She had completed 1 year, 6 months and 13 days of active military service.  On the following day she was transferred to the U.S. Army Reserve Control Group (Annual Training) to complete her Reserve service obligation.  She subsequently served in the Army National Guard from 2 August 1989 through 1 June 1997.

5.  Item 25 (Separation Authority) of her DD Form 214 shows the entry "Army Regulation 635-200, paragraph 6-3b."

6.  Item 26 (Separation Code) of her DD Form 214 shows the entry "MDG."

7.  Item 28 of her DD Form 214 shows the entry "sole parent."

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 6-3 provides, in pertinent part, that a member may be discharged or released because of genuine dependency or hardship.  Paragraph 6-3b of this 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.  Members of immediate family include spouse, children, father, mother, brothers, only living blood relative, and any person who stood "in loco parentis" to the Soldier (or spouse) before entry into the service.

9.  Paragraph 6-3b(1) of Army Regulation 635-200 provided that a married service woman could apply for separation under hardship when she became a parent by birth, adoption, or marriage (stepparent) and whose child (or children) under 18 years of age resided within the household.  The regulation required that the woman must submit evidence that the roles of parent and Soldier are incompatible and that she cannot fulfill her military obligation without neglecting the child or children.

10.  Paragraph 6-3b(2) of Army Regulation 635-200 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.

11.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for these stated reasons.  The regulation states that the primary purpose of SPD codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of the Department of Defense and the military services to assist in the collection and analysis of separation data.

12.  Table 2-1, Army Regulation 635-5-1, in effect at the time, specified the narrative reason for SPD code MDG for voluntary release or transfer as "parenthood of married service women or sole parent" and the authority for discharge under this SPD as "Army Regulation 635-200, paragraph 6-3b(1) or 
6-3b(2)."

13.  Table 2-1, Army Regulation 635-5-1, in effect at the time, specified the narrative reason for SPD code "KDB" for voluntary release or transfer as "hardship" and the authority for discharge under this SPD as "Army Regulation 635-200, paragraph 6-3b."

14.  Army Regulation 635-5-1 states that the regulatory or other authority for separation will be entered in item 25 of the DD Form 214 in accordance with Army Regulation 635-5 (Separation Documents) and this regulation.  When tables 2-2 and 2-3 provide an option for the regulatory citation (for example, Army Regulation 635-200, paragraph 16-4a or 16-4b), the most appropriate specific regulatory authority will be entered in item 25 based on the circumstances of the case as documented in the Soldier's personnel record.

15.  Army Regulation 635-5-1 states that the SPD code will be entered in item 26 of the DD Form 214 per Army Regulation 635-5 and this regulation.

16.  Army Regulation 635-5 establishes the policies and procedures for completion and distribution of the DD Form 214.  In pertinent part, it states that item 28 will list the narrative reason for separation based on regulatory or other authority and can be cross referenced with Army Regulation 635-5-1.

17.  The VA Federal Benefits for Veterans and Dependents booklet states that a person who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable may qualify for VA health benefits.  Reserve and National Guard members may also qualify for VA health care benefits if they were called to active duty (other than for training only) by a Federal order and completed the full period for which they were called or ordered to active duty.  Veterans who enlisted after 7 September 1980 or who entered active duty after 16 October 1981 must have served 24 continuous months or the full period for they were called to active duty in order to be eligible.  This minimum duty requirement may not apply to veterans discharged involuntarily for hardship, early separation, or a disability incurred or aggravated in the line of duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that item 28 of her DD Form 214 be changed to "hardship" to allow her to receive care at the VA hospital was carefully considered.  There is sufficient evidence on which to grant relief requested as an exception to policy.

2.  In the absence of evidence to the contrary, it is presumed that the applicant's administrative discharge proceedings were conducted in accordance with law and regulations applicable at the time.

3.  The applicant's statement that she left the Army early because of her divorce and having full custody of her son is acknowledged.  The applicant's divorce decree confirms she was divorced in September 1987 and granted custody of her minor child.  As a result, she voluntarily requested separation under the provisions of a hardship discharge and was separated prior to her expiration of term of service.

4.  The applicant's DD Form 214 was prepared to reflect the entry "Army Regulation 635-200, paragraph 6-3b" in item 25, which is the paragraph governing a hardship discharge.  However, her separation code was entered as "MDG" in item 26 and her narrative reason for separation was entered as "sole parent" in item 28 of her DD Form 214.

5.  It appears that at the time of the applicant's separation, separation code MDG was entered item 26 to assist the Army with statistical data on Soldiers separating from the service by reason of sole parenthood.  However, this separation code and narrative reason prohibits the applicant from receiving the necessary VA health care benefits as would a Soldier that was separated by reason of hardship.  As a matter of equity, it would be appropriate to grant relief in favor of the applicant.

6.  Therefore, item 26 of the applicant's DD Form 214 should be amended to reflect the entry "KDB" and item 28 should be amended to reflect 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 entry "MDG" from item 26 of her DD Form 214 and replacing it with the entry "KDB" and

   b.  deleting the entry "sole parent" from item 28 of her DD Form 214 and replacing it with the entry "hardship."



      ___________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)                                         AR20090008044



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ABCMR Record of Proceedings (cont)                                         AR20090008044



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