IN THE CASE OF:	

		BOARD DATE:	 2 February 2010 

		DOCKET NUMBER:  AR20090013201 


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 6 (Reserve Obligation Termination Date) of his 2007 DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to reflect 20120506 [6 May 2012] vice 000000 and that item 25 (Separation Authority) be corrected to reflect Army Regulation 635-200, paragraph 6-3 vice paragraph 5-8.

2.  The applicant states he believes his 2007 DD Form 214 contains errors.  He notes that he initially enlisted in the Delayed Entry Program (DEP) on 29 January 2004 and subsequently enlisted in the Regular Army on 5 May 2004.  As such, he maintains that his statutory military service obligation (MSO) should be 6 May 2012; however, he notes that item 6 of his DD Form 214 reflects "000000."

3.  The applicant also states, in effect, that his spouse died in October 2007 leaving him as the sole parent of his young son.  He states that Army Regulation 635-200, paragraph 6-3, states that a genuine dependency or hardship must exist for a Soldier to be discharged and maintains that his circumstances fell under that provision of the regulation.  He asks that his DD Form 214 be changed accordingly.

4.  The applicant states the errors are unjust and resulted in erroneous information in his military files which has denied him an affiliation bonus with the National Guard.

5.  The applicant provides copies of his 2004 enlistment documents, extracts from Army Regulation 635-200, his marriage certificate, his son's birth certificate, and his spouse's death certificate.  He also provides two statements attesting to his status as a sole parent.

CONSIDERATION OF EVIDENCE:

1.  Records available to the Board indicate the applicant enlisted in the U.S. Army Reserve on 29 January 2004 under the Army DEP.  His DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States) states that his period of time in the DEP in not creditable for pay purposes upon entry into a pay status.  However, the document also indicated that this time is counted toward fulfillment of his MSO.

2.  On 5 May 2004 the applicant enlisted in the Regular Army.  At the time of his enlistment he was married.  His son had been born in July 2003.

3.  On 10 October 2007 the applicant's spouse died in Charleston, West Virginia.  The applicant was stationed at Fort Campbell, Kentucky, at the time.

4.  On 21 December 2007 the applicant was honorably discharged from active duty.  His DD Form 214 indicates he was discharged under the provisions of Army Regulation 635-200, paragraph 5-8, by reason of parenthood.  He was not transferred to the U.S. Army Reserve and item 6 reflects "000000" indicating the applicant no longer had any MSO.  Item 26 (Separation Code) reflects "JDG."

5.  Documents associated with the applicant's administrative separation from the Army were not available to the Board.

6.  Army Regulation 635-200 (Personnel Separation) establishes the policies and procedures for the separation of enlisted Soldiers.  Paragraph 5-8 provides for the involuntary separation of Soldiers due to parenthood.  That paragraph states that Soldiers will be considered for involuntary separation when parental obligations interfere with fulfillment of military responsibilities and that notification procedures will be used.

7.  Paragraph 6-3 of Army Regulation 635-200 provides for the discharge or release of Soldiers from active duty because of genuine dependency or hardship.  Dependency exists when death or disability of a member of a Soldier's immediate family causes that member to rely upon the Soldier for principal care or support.  Hardship exists when in circumstances not involving death or disability of a member of the Soldier's immediate family, separation from the Service will materially affect the care or support of the family by alleviating undue and genuine hardship.  That same paragraph states that Soldiers who are sole parents and whose children are under 18 years of age and 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, who is divorced or legally separated and has been awarded child custody by judicial decree or court order, or who is a widow/widower.  Separation under this paragraph is voluntary and requires that the Soldier must request separation from the service because of dependency or hardship in writing.

8.  Army Regulation 635-200, paragraph 1-35, states that Soldiers with a remaining MSO are ineligible for transfer to the IRR (Individual Ready Reserve) and will be discharged if they are voluntarily (chapter 6) or involuntarily (chapter 5) separated from the service for hardship, dependency, or parenthood.

9.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) indicates that SPD code JDG is reflective of an involuntary separation under the provisions of Army Regulation 635-200, paragraph 5-8, for parenthood.  SPD code KDG is assigned to Soldiers who are voluntarily separated under the provisions of Army Regulation 635-200, paragraph 6-3, for parenthood.

10.  Army Regulation 135-91 (Army National Guard and Army Reserve Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures) states that the statutory MSO is incurred on initial entry into the Armed Forces whether by induction, enlistment, or appointment.  On and after 1 June 1984, all Soldiers incurred an 8-year statutory MSO.  Prior to 1 June 1984, most Soldiers incurred a 6-year statutory MSO.  The statutory obligation can be terminated by the Army prior to its fulfillment.  Separation due to discharge, dismissal, or being dropped from the rolls of the Army terminates a Soldier's statutory obligation.

11.  In January 2008, after receiving a waiver for parenthood, the applicant enlisted in the West Virginia Army National Guard.  Orders contained in his official military personnel file indicate that in February 2010 he will be ordered to active duty in support of Operation Enduring Freedom for a period not to exceed 400 days.  His records indicate he has an approved family care plan on file.

12.  This Board is not an investigative body but rules on cases legally before it based on the evidence of record and whether an error or an injustice exists in that record.  The rule of law pertinent to the Board provides for consideration of all cases with the presumption of administrative regularity and that applicants have the burden of proving an error or injustice by a preponderance of the evidence.  The necessary presumption of regularity dictates that the action taken by the Army was appropriate unless evidence submitted by the applicant shows or convinces the Board otherwise.

DISCUSSION AND CONCLUSIONS:

1.  The provisions of Army Regulation 635-200 provide for both the voluntary and involuntary separation of Soldiers from the Army based on parenthood.  A voluntary separation for parenthood under the provisions of paragraph 6-3 would require the Soldier to initiate the separation request.  In the alternative, a Soldier's commander can initiate involuntary separation actions against a Soldier under the provisions of paragraph 5-8 when the Soldier's parental obligations interfere with the performance of his or her duties.  In the applicant's case, although the documents associated with his separation processing are not available to the Board, the evidence which is available indicates the applicant was involuntarily, not voluntarily, separated from the Army as a result of parenthood.

2.  It is possible that under the circumstances the applicant's chain of command determined that the most efficient and expeditious method for accomplishing the applicant's separation action was to utilize the involuntary procedures of paragraph 5-8 rather than requiring the applicant to initiate a voluntary separation request.  However, the applicant would have been involved in the separation processing and as such should have been aware that the separation was involuntary.  In the absence of evidence to the contrary, the Board presumes the separation action was accomplished in compliance with appropriate rules and regulations and the applicant has not provided sufficient evidence which would warrant the relief requested.

3.  Although the applicant did incur a statutory MSO at the time of his enlistment in the U.S. Army Reserve under the DEP, because he was discharged rather than released from active duty, his MSO was terminated.  Whether the applicant was involuntarily discharged under paragraph 5-8 or voluntarily discharged under paragraph 6-3, his MSO would still have been terminated.

4.  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 the aforementioned requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.



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)                                         AR20090013201



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ABCMR Record of Proceedings (cont)                                         AR20090013201



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