IN THE CASE OF:	  

		BOARD DATE:	  24 September 2013

		DOCKET NUMBER:  AR20130003468 


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 an upgrade of her general discharge to an honorable discharge.

2.  The applicant states:

	a.  Her ability to serve was impaired because of family and child care problems.  On 10 November 1990 while serving on active duty, she gave birth to a daughter.  At the time she was married to an active duty service member and she was stationed at Fort Campbell, KY.  Her unit was deployed to Iraq.  During this time she had no one to care for her infant daughter.  Her mother was unable to care for her daughter due to her severe asthmatic condition and her hospitalizations during 1990 and 1991.  Her mother was the only family member she had on her Family Care Plan (FCP).  Her spouse was in the process of being discharged and had received an Article 15.  He was also incapable of caring for her daughter due to his own health issues.

	b.  After her discharge in 1991, she became a stay-at-home mother until her husband was discharged and they moved to Florida.  They divorced in 1995.  She remarried an active duty Coast Guard member and they currently live in Florida.  She is pursuing her bachelor's degree in Business Administration and has been a good citizen.  She has three children; her daughter is now 22 years of age and will graduate in May 2013.  She is a member of Macedonia Missionary Baptist Church.  She is currently unemployed due to company lay-offs.

3.  The applicant provides a copy of her 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 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 8 August 1989.  She completed training and was awarded military occupational specialty 76C (Equipment Records and Parts Specialist).  She was advanced to pay grade E-3 on 9 August 1989.

3.  A DA Form 4187 (Personnel Action), dated 30 August 1990, shows she requested a change of name as a result of her marriage on 29 August 1990.

4.  She received verbal and/or written counseling on the following dates for the reasons indicated:

	a.  On 16 April 1990, she was counseled for pregnancy.  She acknowledged that if she elected to remain on active duty she must remain available for unrestricted service on a worldwide basis when directed and that she would be afforded no special consideration in duty assignment or duty stations based on her status as a parent.  She elected to remain on active duty to fulfill the term of her enlistment.

	b.  On 2 November 1990, she was counseled on the time limits for developing and filing an FCP and separation in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-8, if she failed to do so.

	c.  On 8 January 1991, she was counseled for her failure to develop and file an FCP within the deadline of 30 days from the birth of her child and her recommended separation in accordance with Army Regulation 635-200, paragraph 5-8.

5.  On 16 January 1991, a bar to reenlistment was initiated against the applicant for not maintaining an FCP for her dependents.  On the same day, she acknowledged the bar and elected not to submit a statement in her own behalf.

6.  On 16 January 1991, the applicant's unit commander initiated action to involuntarily separate her for parenthood with a general discharge.  The reason for the proposed action was the applicant's failure to maintain an adequate FCP. 
The unit commander advised the applicant of her rights.

7.  On the same day, after consulting with counsel, the applicant acknowledged receipt of the proposed separation action.  She acknowledged that she could receive a general discharge.  She waived her rights and elected not to submit a statement in her own behalf.

8.  In January 1991, the separation authority approved the applicant's discharge and directed the issuance of a general discharge.

9.  Accordingly, she was released from active duty for parenthood on 24 January 1991 under the provisions of Army Regulation 635-200, paragraph 5-8.  Her service was characterized as under honorable conditions (general).  She was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training).  She completed 1 year, 5  months, and 17 days of net active service with no time lost.

10.  She was honorably discharged from the USAR on 12 August 1997.

11.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of her discharge within its 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-7a provides that an honorable discharge is a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

	b.  Paragraph 5-1 provides that, unless the reason for separation required a specific characterization, a Soldier being separated will be awarded an honorable, general, or uncharacterized description of service if in an entry-level status.  No Soldier will be awarded a general discharge unless the Soldier is notified of the specific factors in his or her service records that warrant such a characterization.

	c.  Paragraph 5-8a, in effect at the time, specified that a Soldier could be considered for involuntary separation when parental obligations interfered with the fulfillment of military responsibilities.  Non-availability for worldwide assignment or deployment according to the needs of the Army could be a reason for separation because of parenthood.  Separation processing could not be initiated until the Soldier was adequately counseled concerning deficiencies and had been afforded the opportunity to overcome them.  The service of a Soldier separated per this paragraph would be characterized as honorable.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows she was counseled on 16 April and 2 November 1990 of the requirement to develop and file an FCP.  On 8 January 1991, she was counseled for failure to establish a valid FCP and subsequently barred from reenlistment as a result.

2.  The evidence of record also shows she was advised and acknowledged she could be subject to separation under the provisions of Army Regulation 635-200, paragraph 5-8a, for being non-available for immediate deployment/worldwide assignment.  After consulting with counsel, she also acknowledged notification of the proposed separation action with a general discharge.

3.  Based on her overall record, no lost time, no unfavorable actions pertaining to her duty performance, and in accordance with regulatory guidance, a Soldier separated under paragraph 5-8a is entitled to a fully honorable discharge.  Therefore, her records should be corrected to show she was honorably released from active duty on 24 January 1991.

BOARD VOTE:

___X___  ___X____  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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 reissuing her a DD Form 214 showing she was honorably released from active duty on 24 January 1991.



      __________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)                                         AR20130003468



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ABCMR Record of Proceedings (cont)                                         AR20130003468



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