BOARD DATE:	  29 July 2014

		DOCKET NUMBER:  AR20130020089 


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.  an upgrade of her general discharge under honorable conditions to an honorable discharge;

	b.  that the narrative reason for her discharge be changed from "Misconduct (Serious Offense)" to "Parenthood;" and

	c.  a change to her reentry eligibility (RE) code to make her eligible for enlistment.

2.  She states that her discharge was a result of two situations not being handled individually and one not being recognized as the primary cause of discharge.  The fact that she could not provide adequate childcare should not have proposed a prior charge that was executed and carried out by her and her command.  She contends that an honorable discharge will allow her to reestablish her life and better provide for her family.  Additionally, this discharge has adversely affected her ability to “maintain” which has caused severe financial, mental, and physical hardship and left her and her three children unstable and homeless since her discharge in 2010.

3.  The applicant attests that her senior noncommissioned officer in charge (NCOIC) instructed her to submit supporting documentation for her promotion packet which was subsequently denied and resulted in her undergoing an adverse action and receiving punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ).  In addition to this adverse action and punishment, she already had previous and current family care plan issues that had not changed and were carelessly addressed.  She was given several options, but none that met her financial situation.

4.  The applicant attests that she is currently stable due to a program called Housing and Urban Development - Veterans Affairs Supportive Housing (HUD-VASH) which provided her family stable housing as of 9 August 2013.  However, she is still dealing with financial instability and mental/emotional hardship.  Her young daughter was recently diagnosed and is undergoing therapy for Reactive Attachment Disorder due to inadequate care-giving and Oppositional Defiant Disorder.

5.  She attests that she has made numerous sacrifices in her attempt to combine her personal life and her Soldier responsibilities, even to the point of having her three children live in various places so as not to burden her military obligations.  They were forced to live without her and without each other.  She contends it is well known that separation from a parent is hard for a child.  The applicant understood that her family issues conflicted with her duties as a Soldier and pleaded that she be separated in accordance with paragraph 5-8 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), but instead she was discharged on a previous charge with the option of reentering after a period of 2 years.  However, she was given an RE code "4" on her DD Form 214 (Certificate of Release or Discharge from Active Duty).

6.  The applicant asks that her case be evaluated thoroughly on the documents at hand and her overall service to the U.S. Army.  She successfully completed a deployment and an overseas tour while handling family complications, both financially and emotionally, with no prior charges.

7.  The applicant provides:

* a self-authored statement
* extracts from her request for a compassionate reassignment
* extracts from her Army health record
* 2 DA Forms 4856 (Developmental Counseling Form)
* a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ)
* her discharge packet 
* a letter from the Department of Veterans Affairs (VA)
* extracts from her VA health record
* correspondence exchanged between her and two Members of Congress (MOC)


CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 6 June 2007.  Upon completion of initial entry training, she was awarded military occupational specialty (MOS) 42A (Human Resources Specialist).  The highest rank/grade she attained while serving on active duty was specialist (SPC)/E-4.  However, at the time of her separation she held the rank/grade of private first class (PFC)/E-3.

2.  The applicant was assigned to the Hometown Recruiting Assistance Program (HRAP) with duty at Charlottetown Recruiting Station, Charlotte, NC, while she awaited attendance of initial entry training.  The applicant provides a Memorandum for Record, Subject:  Request for Reassignment, that was rendered by the Station Commander on 7 November 2007.  He stated:

	a.  The applicant had completed the HRAP and was now scheduled for permanent change of station (PCS) to Europe with a departure date of 12 November 2007 and she had brought concerns of a possible hardship to his attention. 

	b.  The applicant joined the Army as a married Soldier with three young dependent children.

	c.  During her training, she began to have marital problems.  Unable and unwilling to reconcile differences, the applicant began divorce proceedings upon returning from training.

	d.  The applicant was requesting a reassignment to the southeast region of the United States because she had a family support channel in that region and it would enable her to set up a family care plan for her dependent children.  He requested favorable consideration of this request.

3.  The applicant provides a letter that was rendered on her behalf by an MOC on 12 June 2008.  The MOC stated the applicant had visited his office seeking assistance with a compassionate reassignment request.  He noted the applicant was stationed in Germany and had been on permissive temporary duty (PTDY) so that she could return her children to the continental United States (CONUS) prior to her deployment.  However, her children were no longer living together and the applicant was very concerned.  She had to place one child with relatives in North Carolina, another in Arizona, and her oldest in New York City with her mother.  The oldest child, a son, had to sleep with her mother in the same bed due to the overcrowding situation in her mother's apartment.  She feared for his safety and was unhappy with the surroundings to which he was subjected.  Due to her safety concerns for her children, she respectfully requested a compassionate reassignment that would allow her to be reassigned to a unit stateside with her children until she could stabilize their living situation.  The applicant made it very clear to the MOC's staff that she did not want to be released from the Army; she just wanted the opportunity to get her children settled under safer conditions.  The deployment was expected to last for several months and she could not, in good conscience, leave her children disbursed throughout the U.S. and be able to perform her duty successfully.

4.  The applicant provides a Memorandum for Record, Subject:  Recommendation for Compassionate Reassignment for [the applicant], that was rendered by her Battalion Chaplain on 2 July 2008.  The Chaplain stated he had counseled with the applicant and concurred with her request for a compassionate reassignment of her dependents.  He noted that the applicant's Family Care Plan included an Early Return of Dependents (EROD) of her three children to the United States for her mother to care for them.  Her mother has since not been able to care for them properly.  Two of her children were living with trusted friends and her oldest son was living with her mother.  The applicant said her mother had let others move into the apartment and it had become overcrowded.  She also stated that her mother had started spending time with people that she did not trust around her son.  These included her former husband who had been released after spending 7 years in prison and had been in and out of jail since his release.  She said other members of her family abused drugs and alcohol and she feared that people such as her pastor, who knew about the situation, would call Social Services which could lead to her losing custody of her child.  The Chaplain opined that allowing a compassionate reassignment to CONUS would allow the applicant to better care for her children, reestablish a Family Care Plan, and remain in the Army.

5.  The applicant provides a self-authored Memorandum for Record, Subject:  Reason to be Considered for Compassionate Reassignment, dated 19 July 2008, wherein she requested to be evaluated fairly for a compassionate reassignment.
She stated:

	a.  While home on leave, she witnessed some very disturbing behavior that her mother displayed while caring for her son.

	b.  She originally requested a compassionate reassignment through a Congressional inquiry.  However, her reasons for submitting through an MOC had nothing to do with her unit; she never intended to degrade her chain of command.  She was concerned for her child's safety.

	c.  Her mother's ex-boyfriend was coming home from jail and she made it clear that she wanted the applicant to come and pick up her son.  Her mother originally agreed to take care of her son and to make the best choices for him and his safety.  Unfortunately, her son was not in a safe environment. 

	d.  For miscellaneous reasons, her mother was to never leave her son with strangers or particular family members, particularly those who abused drugs, were involved with gangs, or had living conditions that were not conducive for a child.

	e.  She was willing to do anything for her children, even sacrifice her life and comfort in order for them to have better opportunities then she was given.  Leaving her son in this situation would cause him to be mentally or even physically abused in the future.

	f.  The solution for this problem is simple.  She needed time that she did not have in order to get her son situated.  Approving her request for a compassionate reassignment would allow her to place her son in a stable and reliable home.  Her pastor agreed to take him, but needed time to complete arrangements for doing so.  She attested that she could resolve the situation in 1 year or less and that being overseas created a financial burden, made communication difficult, and further complicated the situation.

	g.  She believed that the Army would benefit more if she remained an active Soldier in CONUS rather than being separated.  However, if her situation escalated or became irresolvable, she would request to be separated from the Army.

6.  The applicant deployed to Iraq from 3 December 2008 through 18 November 2009.

7.  Her record contains a DA Form 2823 (Sworn Statement) rendered by a major (MAJ)/O-4 on 26 March 2010.  The MAJ essentially stated:

	a.  The applicant reported to Cadet Command G1, Fort Monroe, VA around January 2010.

	b.  In February 2010, Sergeant First Class (SFC) B reported to Cadet Command G1.

	c.  A few weeks after SFC B arrived, the applicant informed SFC B that she was promotable and had been to the promotion board in Germany.  SFC B then asked the applicant to produce her promotion packet and she did.

	d.  After reviewing the promotion packet, SFC B knew immediately that something was not right and made contact with the applicant's unit in Germany to verify whether or not she had appeared before a promotion board or was recommended for a board and the answer was "No."  SFC B also found that the applicant, or someone affiliated with her, had updated her promotion points in the Enlisted Distribution and Assignment System (EDAS) to reflect 600 promotion points.

	e.  Once they received confirmation from Germany, they brought the matter to the attention of their local chain of command and immediately removed the applicant's access to EDAS and the Electronic Military Personnel Office (eMILPO) database so she would no longer have access to these automated systems with Soldiers' personally identifiable information.

	f.  SFC B counseled the applicant, in the presence of another witnessing NCO, on the fact that she would no longer have access to these systems.  It was at this counseling that the applicant admitted on her own accord to forging her promotion packet, but would not admit who input her promotion points into eMILPO and EDAS.  The U.S. Army Human Resources Command was unable to determine who entered the applicant's points into the databases.

	g.  The MAJ opined that as a 31-year-old mother of three, and as an adult and Soldier, the applicant should know wrong from right.  Furthermore, as an Adjutant General Soldier, she was privilege to Soldiers' personal and family information.  As a result of her integrity violation, he questioned whether she was a trustworthy enough Soldier to continue serving in her current position or MOS.

8.  On 13 April 2010, the applicant underwent a comprehensive psychiatric evaluation/examination.  During the interview, the applicant expressed that ever since she returned to CONUS and was living with her kids again she was more irritable than usual.  She explained that she was having difficulty adjusting to living with three young children and that the children were not used to living with her or each other, having lived together now only 2 months.  The examining physician noted that it appeared the applicant did appear to experience acute anxiety reaction, but did not appear to meet threshold for Panic Disorder.  He also noted that she described feeling little or no connection to her children, especially the youngest who particularly misbehaved and did not get along with the other two children.  She denied thoughts or intent of harm toward the children, but was concerned that she could hurt them accidentally or out of frustration.  She was evaluated for Post-Traumatic Stress Disorder (PTSD).  She did not appear to meet the criteria for PTSD, denied any significant trauma experiences in Iraq, and denied any signs and symptoms consistent with PTSD.

9.  On 7 May 2010, SFC B counseled the applicant on her lack of sufficient child care for her dependent children.  She reminded the applicant that it was her responsibility to find care for her children so that she could properly perform her daily duties.  SFC B advised the applicant that she would be given time to find childcare for her children which would be outlined in a plan of action.  She also advised the applicant that continued conduct of this nature could result in a bar to reenlistment, administrative action to include separation from the service, and/or punishment actions under the UCMJ.  SFC B further advised the applicant that if she could not find care for her children within the allotted time, it would be her recommendation to the chain of command to start processing her for elimination.
SFC B gave the applicant a plan of action and the applicant indicated that she agreed with the counseling and plan of action by initialing and signing the document.  

10.  On 11 May 2010, the applicant accepted punishment under the provisions of Article 15, UCMJ for violating Article 123, UCMJ by falsifying a Report of Promotion Board Proceedings on or about 23 February 2010 with intent to fraud.

11.  On 12 May 2010, SFC B conducted follow-up counseling with the applicant to determine where she was in her search for childcare.  She advised the applicant that this was not a negative counseling, but reminded her that if she could not find care for her children within the allotted time it would be her recommendation to the chain of command to start processing her for elimination.
SFC B instructed the applicant to update her daily on how her search for child care was going to include the names and locations of the childcare facilities.  The applicant told SFC B that she had already found a place close, but it would cost too much for her to pay so, unless she could find something closer, she could not provide childcare for her children.

12.  Later on 12 May 2010, SFC B once again counseled the applicant regarding finding sufficient childcare for her dependent children.  She noted that the applicant had stated she had not been looking for childcare.  The applicant had stated "I can't afford to pay for child care so why look?"  So, instead of using the time given to her to look for childcare, she used it for other things.  SFC B told the applicant that she had disregarded the order that was given to her.  As stated in the initial counseling, she would recommend to the chain of command to start processing the applicant for elimination from the service due to lack of childcare.

13.  On 19 May 2010, an Army Emergency Relief (AER) Personal Financial Readiness Specialist provided the applicant a detailed summary of the applicant's financial status at the time.  She also opined that the applicant's financial situation and her expiration term of service (ETS) date did not make it feasible for her to incur additional debt and be able to pay it off prior to separation on her ETS date, particularly if she was reduced in rank/pay grade.

14.  The applicant provides a self-authored statement, dated 19 May 2010, entitled "Request for Family Care Plan Chapter Action."  In this request, she explained how her current Family Care Plan had fallen through because her nephew was no longer staying with her.  This required her transport her children to and from school during her duty hours.  

   a.  She also explained that while stationed in Germany she had a verbal agreement with her father to care for her children stateside, but that fell apart when he became gravely ill and passed away.  Her chain of command allowed her to take emergency leave stateside in order to establish a viable Family Care Plan and to settle her children in three separate temporary homes.  This situation resulted in emotional trauma for the children because they were not only separated from her, but also from each other.  Just prior to her scheduled deployment, she was informed that her oldest child's safety was in jeopardy and she had to make arrangements to relocate him yet again.  This incident resulted in the initiation of action to separate her from the Army due to not having a viable Family Care Plan, but it was dismissed when she found a safe home for him.  
   
   b.  She attests that on several occasions she had verbally requested to be separated due to Family Care Plan hardship because her primary focus at the time was the stability of her children.  She noted that her chain of command had suggested that she relocate her family to Army family housing to be near military child care and to reduce her outlay for rent and utilities.  However, an AER summary of related costs of moving supported the fact that moving at that time during her lease could cost her as much as $15,782.  She did not have that kind of money or access to additional funds.  The applicant opined that attempting to resolve the situation by relocating her would only cause more problems and impose additional financial hardship on her family.  She also did not want to subject her children to another move.
   
   c.  She contends that she had made many sacrifices for her family and completely understood the seriousness of Family Care Plan separation action.  In preparation for separation from the military, she had researched other options that would put her in a position to care for her family and was working on reducing her debt.  Through command referrals, she had gained knowledge on how to better manage her money, improve her parenting skills, and found community resources to help her family.  However, after weighing her options, a Family Care Plan separation action was the best choice for her family to stabilize their lives.

15.  On 22 June 2010, the applicant's unit commander notified her that she was initiating action which could result in separation from the Army with a general discharge under honorable conditions under the provisions of Army Regulation 635-200, chapter 14-12(c), for commission of a serious offense.  The commander specifically cited the facts that the applicant had altered promotion board results to reflect her information and that fraudulent information was subsequently uploaded into EDAS, an official automated system, to which the applicant had access.  The commander informed the applicant that she would recommend that she receive a general under honorable conditions discharge.  The applicant was advised of her rights and the impact of the discharge.  She acknowledged receipt of the notification and her right to consult with counsel prior to making any election of rights.

16.  She consulted with legal counsel and was advised of the basis for the contemplated action to accomplish her separation for misconduct and its effects; the rights available to her; and the effects of any action taken by her in waiving her rights.  She elected to submit statements in her own behalf.  She also indicated her understanding that if she received a discharge certificate or character of service which was less than honorable, she could make application to the Army Discharge Review Board (ADRB) or the ABCMR for upgrading; however, she realized that an act of consideration by either board did not imply that her discharge would be upgraded.  She also acknowledged her understanding that she would be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge.

17.  The separation authority approved the applicant's separation and directed that the applicant be separated under the provisions of Army Regulation 635-200, paragraph 14-12(c), for misconduct – commission of a serious offense.  He determined her service would be characterized as under honorable conditions.

18.  On 2 September 2010, the applicant was discharged accordingly.  Her DD Form 214 shows:

* her service was characterized as under honorable conditions
* she was discharged under the provisions of Army Regulation 635-200, paragraph 14-12(c)
* her a separation program designator (SPD) code was JKQ
* her RE code was 4
* her narrative reason for separation was "Misconduct, (Serious Offense)"

19.  The applicant applied to the ADRB for an upgrade of her general discharge to an honorable discharge based upon her contentions that she had Family Care 
Plan issues before her misconduct and that she had been told she would be separated for not having a Family Care Plan and the misconduct would not be held against her.  On 1 May 2012, by letter, the applicant was advised that after careful review of her application, military records, her testimony, and all other available evidence, the ADRB determined she was properly and equitably discharged.  Accordingly, her request for a change in the character and/or reason of her discharge was denied.

20.  The applicant provides:

	a.  A letter from a Veterans Service Center Manager, dated 22 March 2013, which provided the applicant a summary of benefits she was currently receiving from the VA.  This letter, in part, shows the VA characterized her service from 6 June 2007 to 2 September 2010 as honorable for VA purposes.  It also shows the VA had granted her a service-connected disability rating of 40 percent and compensating her at a monthly rate of $673.00.

	b.  An extract from her daughter's psychological evaluation which shows, in part, that she is undergoing treatment for Reactive Attachment Disorder, Disinhibited type and Oppositional Defiant Disorder and that her behaviors cause significant impairment in her home and school environments.

	c.  Correspondence showing that on 19 August 2013 she requested assistance from an MOC with obtaining the relief she requested from this Board. The basis for her argument was the same as those that she posed to the Board.

21.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 deals with separation for various types of misconduct and provides that individuals identified as offenders may be separated prior to their normal date of expiration of term of service.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.  Paragraph 14-12(c) pertains to commission of a serious military or civil offense.

22.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member'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.
23.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states that SPD code JKQ is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12(c), for commission of a serious offense.

24.  At the time of the applicant's discharge, the SPD/RE Code Cross Reference Table indicated that RE code 4 was the proper code to assign to members separated with SPD code JKQ.

25.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing in the Regular Army, U.S. Army Reserve, and Army National Guard.  Chapter 3 prescribes the basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes.

	a.  RE code 1 applies to persons who are considered fully qualified for reentry or continuous service at the time of separation.

	b.  RE code 3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but disqualification is waivable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that her discharge should be upgraded, her narrative reason for discharge should be changed, and her RE code should be changed to make her eligible for enlistment were each carefully considered and found to lack merit.

2.  The fact that the applicant had difficulty establishing and maintaining a viable Family Care Plan during the HRAP while stationed in Germany and while stationed at Fort Monroe is duly noted.  It is also noted that Army leaders accommodated her requirement to obtain a sustainable Family Care Plan and afforded her numerous opportunities to do so.  In accordance with Army policy, she was counseled in writing regarding her need for a Family Care Plan and advised that failure to establish one in a timely manner could result in the initiation of administrative action to separate her from the Army.  The applicant was given until 14 May 2010 to establish a viable Family Care Plan in order to avoid further administrative action.

3.  In an unrelated matter, evidence clearly shows that in February 2010, shortly after her arrival at Fort Monroe, it was discovered that the applicant had fraudulently modified documents and electronic databases to reflect that she had appeared before a promotion board and held a promotable status.  In view of this misconduct, the applicant's officer in charge requested disciplinary action be initiated against the applicant and questioned whether she was suitable for continued service.  As a result, the applicant accepted nonjudicial punishment on 11 May 2010.

4.  Evidence shows that on 12 May 2010, the applicant informed her NCOIC that she had not been looking for childcare and had instead been using the time provided for that purpose to do other things.  As a result, the applicant's NCOIC informed her that she had disregarded an order and as stated in their initial counseling, she would recommend to the chain of command to start processing her for elimination from the service due to lack of childcare.

5.  Notwithstanding the matter of not having a viable Family Care Plan, the evidence of record shows her chain of command determined that the nature of her offense warranted separation and she was recommended and approved for separation under the provisions of Army Regulation 635-200, paragraph 14-12(c), by reason of misconduct, commission of a serious offense.  The evidence also shows the applicant was assigned the appropriate SPD code of JKQ and RE code of 4 at the time of her discharge.

6.  The evidence shows the applicant was properly and equitably discharged in accordance with the statutes and regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized her rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects her overall record of service.

7.  Based on her record of indiscipline, the quality of the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel to warrant an honorable discharge.  Therefore, she is not entitled to a change in the narrative reason for her discharge or for an upgrade of her general discharge to an honorable discharge.

8.  The applicant's strong desire to reenter military service is duly noted.  However, based on her record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, she is not entitled to an upgraded RE code.


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)                                         AR20130020089



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130020089



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1