IN THE CASE OF:	  

		BOARD DATE:	  2 December 2013

		DOCKET NUMBER:  AR20130005312 


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:

	a.  voidance of his honorable discharge,

	b.  reinstatement in the Regular Army, and

	c.  a promotion to sergeant (SGT)/E-5.

2.  The applicant states:

	a.  His discharge was/is illegal.  He had this confirmed by legal counsel.

	b.  His spouse was deemed "incapable of self-care" due to not having a driver's license and being pregnant which required one monthly appointment to the doctor.  At the same time, he was in physical therapy three times a week for a lower back injury due to combat.  His former command's complaint was that he was missing too much work due to his spouse's one appointment per month and that it interfered with his duties.

	c.  His command wrongfully required him to submit a family care plan.  His command stated his spouse was incapable of self-care due to the fact that she did not have a driver's license and cited Army Regulation 600-20 (Army Command Policy).  He contends this is not in accordance with Title 29, Code of Federal Regulations (CFR), section 825.122(c)(1).  Incapable of self-care means the individual requires active assistance or supervision to provide daily self-care in three or more of the activities of daily living or instrumental activities of daily living.

3.  The applicant provides:

* contents of his DA Form 201 (Military Personnel Records Jacket)
* discharge proceedings
* Congressional inquires
* timeline of events leading to his unlawful discharge
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* email from a Member of Congress, dated 11 July 2013

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 17 September 2003.  He completed initial training and was awarded military occupational specialty 88M (motor transport operator).  He served in Iraq and Kuwait.  He was advanced to the rank of specialist on 22 July 2009.

2.  He was counseled as follows:

* the requirement to submit a family care plan on 14 February 2011
* the requirement to submit a family care plan on 14 March 2011
* submitting an invalid family care plan on 4 April 2011

3.  On 1 June 2011, he was notified of his pending involuntary separation due to parenthood under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-8.  His unit commander cited his failure to perform prescribed duties satisfactorily.

4.  On 1 June 2011, he acknowledged receipt of the notification of his pending separation.

5.  The separation authority approved the recommendation and directed his separation with an honorable discharge.  On 6 July 2011, he was honorably discharged due to parenthood.

6.  Army Regulation 635-200, paragraph 5-8, states Soldiers will be considered for involuntary separation when parental obligations interfere with fulfillment of military responsibilities.  Inability to perform prescribed duties satisfactorily is a reason for separation due to parenthood.

7.  Army Regulation 635-200 also states Army leaders at all levels must be continually aware of their obligation to provide purpose, direction, and motivation to Soldiers.  It is essential that Soldiers who falter, but have the potential to serve honorably and well, be given every opportunity to succeed.  Except as otherwise indicated in this regulation, commanders must make maximum use of counseling and rehabilitation before determining that a Soldier has no potential for further useful service and, therefore, should be separated.  In this regard, commanders will ensure that adequate counseling and rehabilitative measures are taken before initiating separation proceedings for involuntary separation due to parenthood.

8.  Army Regulation 600-20 states commanders of Active Army Soldiers, regardless of the Soldier's grade, will conduct or arrange for family care plan counseling and require completion of a family care plan when a Soldier whose spouse is incapable of self-care or is otherwise physically, mentally, or emotionally disabled so as to require special care or assistance.

9.  Title 29, CFR, section 825.122, pertains to definitions of spouse, parent, son or daughter, next of kin of a covered service member, adoption, foster care, son or daughter on active duty or call to active duty status, son or daughter of a covered service member, and parent of a covered service member for the Family and Medical Leave Act (FMLA) regulation.  Section 825.122(c)(1) states for purposes of FMLA leave, "incapable of self-care" means the individual requires active assistance or supervision to provide daily self-care in three or more of the activities of daily living or instrumental activities of daily living.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge was/is illegal because his spouse was deemed incapable of self-care by his command because she did not have a driver's license and she was pregnant.  However, the evidence shows he was involuntarily separated due to parenthood because he failed to perform his prescribed duties satisfactorily.

2.  He contends his command wrongfully required him to submit a family care plan.  However, in accordance with the governing regulation, a Soldier whose spouse is incapable of self-care is required to have a family care plan.  He was counseled and given ample time to produce a valid family care plan.

3.  His contention pertaining to the definition of "incapable of self-care" prescribed in Title 29, CFR, section 825.122, was noted.  However, this definition pertains to FMLA leave, not to a commander’s determination under Army Regulation 600-20 that a spouse’s inability for self care interferes with a Soldier’s ability to fulfill military responsibilities.

4.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which might tend to jeopardize his rights.

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

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 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)                                         AR20130005312



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ABCMR Record of Proceedings (cont)                                         AR20130005312



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