IN THE CASE OF:	  

		BOARD DATE:  24 April 2012

		DOCKET NUMBER:  AR20110019268 


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 her general discharge under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states her discharge is unjust due to the fact that she chose to stay home with her newborn child who was constantly in the hospital.  The doctors were unable to figure out what was wrong with her daughter until a specialist sent her to Vanderbilt for tests.  Her daughter went in for open heart surgery and her husband, who was in Saudi Arabia, was able to come home.  She now has a desire to go overseas to offer some type of support to our troops, no matter how small in nature and she feels a general discharge might prove more of a hindrance.

3.  The applicant provides no additional 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.  She enlisted in the Regular Army on 27 September 1988 for a period of 
4 years.  She completed basic combat and advanced individual training and was awarded military occupational specialty 76V (Materiel Storage and Handling Specialist).

3.  She was awarded the Army Achievement Medal on 15 February 1990 for exceptional meritorious achievement.  On 27 November 1990, she was promoted to specialist/pay grade E-4.

4.  Her military records show she has two daughters, born on 29 July 1983 and on 23 September 1990.

5.  In an undated statement, her commander stated he informed her prior to the birth of her child that she had a maximum of 30 days from the date of birth to provide a Family Care Plan for her child.  He further informed her that failure to do so would result in separation from the Army.

6.  On 8 January 1991, she was formally counseled for failure to develop and file a Family Care Plan within 30 days from the birth of her child.  However, she failed to do so.

7.  On 16 January 1991, she received a bar to reenlistment due to her failing to maintain a Family Care Plan.  She was counseled and advised of the basis for the bar to reenlistment.  She did not desire to submit a statement in her own behalf and she did not appeal the bar to reenlistment.

8.  On 16 January 1991, her commander notified her he was initiating action to separate her under the provisions of paragraph 5-8 of Army Regulation 635-200 due to her failure to maintain an adequate Family Care Plan.  He was recommending a general discharge under honorable conditions.  He further advised her she had the right to:

* consult with consulting counsel and/or civilian counsel at no expense to the government
* obtain copies of documents that would be sent to the separation authority
* request a hearing before an administrative board
* submit written statements in her own behalf
* request appointment of military counsel for representation or representation of military counsel of her choice
* retain civilian counsel at no expense to the government
* waive all of the above rights

9.  On 18 January 1991, after having been afforded the opportunity to consult with appointed counsel, military counsel of her own choice, or civilian counsel at her own expense she declined the opportunity.

10.  She waived all of her rights.  She understood that she may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to her.

11.  Her commander recommended she be discharged under the provisions of paragraph 5-8 of Army Regulation 635-200 due to her failure to maintain an adequate Family Care Plan.

12.  The separation authority approved her separation under the provisions of paragraph 5-8 of Army Regulation 635-200 and directed that she receive a General Discharge Certificate.  She completed 2 years, 3 months, and 29 days of active service that was characterized as under honorable conditions.

13.  There is no indication she applied to the Army Discharge Review Board (ADRB) for an upgrade of her discharge within the ADRB's 15-year statute of limitations.

14.  Army Regulation 600-20 (Army Command Policy), then in effect (30 March 1988), prescribed policy on basic responsibilities of command, military discipline and conduct, and enlisted aspects of command.  Paragraph 5-5 (Pregnancy and family care counseling) stated Soldiers were identified and counseled using 
DA Form 5304-R (Family Care Counseling Checklist) and, when applicable, 
DA Form 5305-R (Statement of Understanding and Responsibility).

	a.  Dual-service parents of all active duty and Reserve Components were counseled by his or her commander when one or more of the following applied:

* married to a member of the Army or another Service 
* have joint physical and legal custody of one or more children under 	age 18
* have family members incapable of self-care regardless of age

	b.  Single parents of all active duty and Reserve Components were counseled when one or more of the following applied:

* have no spouse or are legally separated from a spouse
* have physical and legal custody of one or more children under age 18
* have family members incapable of self-care regardless of age

	c.  Soldiers must arrange for the care of their family members so as to:

* be available for duty when and where the needs of the Service dictate
* be able to perform assigned military duties without interference
* remain eligible for worldwide assignment

	d.  Commanders stressed the obligations above.  Moreover, they ensured that Soldiers knew they would not receive special consideration in duty assignments or duty stations based on their responsibility for family members. The main evidence that Soldiers have made adequate arrangements for the care of their dependents was the execution of a DA Form 5305-R.

	e.  Enlisted Soldiers were further counseled regarding:

* voluntary and involuntary separation under provisions in Army 	Regulation 135-178, chapter 4, or Army Regulation 635-200, chapters      	5 and 6, whenever parenthood interferes with military 	responsibilities
* a bar to reenlistment for failure to provide an approved family care 	plan, or for failure to manage family affairs

	f.  The Soldier was informed that a DA Form 5305-R must be completed within 2 months of the date of counseling or within two months of the birth date of the child for single or dual service parents.

15.  Army Regulation 635-200, then in effect, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for  the orderly administrative separation of Soldiers for a variety of reasons.

	a.  Paragraph 3-7 stated an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  It is a pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service.

	b.  Paragraph 5-8 (Involuntary separation due to parenthood) stated 
Soldiers were considered for involuntary separation when parental obligations interfered with fulfillment of military responsibilities.  Specific reasons included  non-availability for worldwide assignment or deployment according to the needs of the Army.  A Soldier being separated under this paragraph for the convenience of the Government was awarded a character of service of honorable, under honorable conditions, or an uncharacterized description of service if in entry-level status.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the doctors were initially unable to determine what was wrong with her newborn daughter and the child ended up having open heart surgery.  The length of the daughter's illness was not indicated nor was the period that she underwent open heart surgery.  She did not submit any evidence to support her contention.  Therefore, her contentions could not be considered as mitigated factors in the determination of her case.

2.  There is no evidence she ever completed a DA Form 5305-R.  Her failure to complete a Family Care Plan was the only basis for her bar to reenlistment and her involuntary discharge.

3.  Her separation due to parenthood was proper and in accordance with the regulations in effect at the time.  All requirements of law and regulation were met and the her rights were fully protected throughout the separation process.

4.  Her military records do not show a pattern of infractions of military discipline.  There are no other acts of indiscipline in her military records.  She was awarded the Army Achievement Medal and she had been promoted to specialist.  In this case, failure to provide a Family Care Plan is not sufficient to warrant assignment of a general under honorable conditions character of service; characterization of service is based on the entire period of service.  Therefore, it would be equitable to upgrade her discharge to an honorable discharge.

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 changing her discharge to an honorable discharge and issuing her a new
DD Form 214 and an Honorable Discharge Certificate to reflect this change.



      _______ _   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)                                         AR20110019268



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ABCMR Record of Proceedings (cont)                                         AR20110019268



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