BOARD DATE:	  6 November 2014

		DOCKET NUMBER:  AR20140003510 


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 correction of her records to show she is entitled to Non-Regular retirement or amendment of her hardship discharge date from 18 April 2003 to 31 December 2003.

2.  The applicant states:

* while serving on active duty in support of Operation Enduring Freedom, she was denied a transfer to her U.S. Army Reserve (USAR) unit and into the inactive Reserve and forced to take a hardship discharge
* she later discovered the Army could have transferred her to her Reserve unit or into the inactive Reserve

3.  The applicant provides:

* applications for compassionate reassignment and hardship discharge
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* four character-reference letters
* military records from the National Personnel Records Center

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.  After prior honorable service in the USAR and U.S. Coast Guard Reserve, the applicant enlisted in the USAR on 27 December 2000.

3.  On 7 February 2003 while assigned to Detachment 2, 444th Adjutant General Battalion, USAR, Fort Meade, MD, the applicant was ordered to active duty as a member of her Reserve unit effective 7 February 2003 for a period of 365 days in support of Operation Enduring Freedom with follow-on assignment to Fort Lee, VA, on 10 February 2003.

4.  A DA Form 3739 (Application for Compassionate Actions), dated 13 March 2003, shows the applicant submitted a request for a compassionate reassignment from Fort Meade, MD, to Fort Eustis, Fort Story, or Fort Lee, VA.  She stated she provided complete financial support for her mother who had six strokes and a diagnosis of recurrent strokes, diabetes, and congestive heart failure.  Her mother's prognosis was poor and her life expectancy was unknown.

5.  On 26 March 2003, her battalion commander recommended disapproval of her request and stated:

* the applicant was a mobilized Reservist
* the applicant's mother was not her dependent
* the applicant did not have a Family Care Plan and stated in writing that she could not submit a Family Care Plan for her mother
* she supported a hardship discharge so the applicant could continue to care for her mother or, in the alternative, reassignment to Detachment 2 as a troop program unit Soldier

6.  On 27 March 2003, the approval authority disapproved the applicant's request for a compassionate reassignment.  The applicant was advised that the Defense Enrollment Eligibility Reporting System (DEERS) did not show her mother as a dependent and advised her that she had two options:

* comply with her orders
* apply for a hardship discharge based on dependency

7.  A DA Form 4651-R (Request for Reserve Component Assignment or Attachment), dated 28 March 2003, requested the applicant's voluntary transfer from Detachment 2, 444th Adjutant General Battalion, USAR, Fort Meade, MD, to the 424th Transportation Company, USAR, Galax, VA, for cogent personal reasons.  The request is not signed by the losing unit commander.

8.  On 3 April 2003, the applicant submitted a DA Form 4187 (Personnel Action) and a DA Form 3739 requesting a hardship discharge.  Her unit commander recommended approval of her request.  Her statement in support of a hardship discharge stated, in part, "I respectfully request a hardship discharge to care for my mother because I have no other recourse.  I have 19 1/2 good years of Reserve service and I am a loyal and hardworking Soldier; if this were not the only possible recourse, I would prefer to continue my service at least for 6 months to be able to retire."

9.  U.S. Army Combined Arms Support Command and Fort Lee 
Orders 104-00223, dated 14 April 2003, reassigned the applicant from Detachment 2, 444th Adjutant General Battalion, USAR, Fort Meade, MD, to Headquarters and Headquarters Company, U.S. Army Garrison, Fort Lee, VA, in support of Operation Enduring Freedom for a period not to exceed 365 days effective 14 April 2003.

10.  On 15 April 2003, the applicant's request for a hardship discharge was approved.

11.  On 17 April 2003, dependency status was established for the applicant's mother in DEERS.

12.  U.S. Army Combined Arms Support Command and Fort Lee 
Orders 107-0174, dated 17 April 2003, reassigned the applicant to the Transition Center, Fort Lee, VA, effective 18 April 2003, for transition processing.  These orders show her date of discharge as 18 April 2003.

13.  On 18 April 2003, the applicant was discharged due to hardship.  Her DD Form 214 shows she completed 2 months and 12 days of active service and a total of 21 years, 8 months, and 10 days of prior inactive service.

14.  On 9 May 2003, the applicant submitted a request for assistance to her State Representative.

15.  On 9 April 2014, the Chief, Retired Pay Branch, U.S. Army Human Resources Command (HRC), Fort Knox, KY, provided an advisory opinion.  HRC recommended denial of the applicant's request and stated an audit of the applicant's records by the HRC Reserve Component Retirements Branch showed she only completed 19 years, 3 months, and 23 days of qualifying service for Non-Regular retirement (retired pay at age 60).

16.  The applicant provided copies of her applications for compassionate reassignment and hardship discharge, DD Form 214, and military personnel records.  She also provided four character-reference letters which confirm her mother's health.

17.  On 23 April 2014, a copy of the advisory opinion was provided to the applicant for review and comment.

18.  On 2 May 2014, the applicant provided a response wherein she stated:

* the advisory opinion did not address the issue of her request
* she acknowledged that she was several months short of the 20 qualifying years of service at the time of her hardship discharge
* her request was based on the fact that she was unjustly denied the opportunity to transfer to her Reserve unit or to the inactive Reserve
* had she been afforded the opportunity to transfer, she would have completed more than 20 qualifying years of service

19.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Paragraph 6-3 states Soldiers on active duty may be discharged or released because of genuine dependency or hardship.  Separation will be granted when all the following circumstances exist:  (1) conditions have arisen or have been aggravated to an excessive degree since entry on active duty, (2) conditions are not of a temporary nature, (3) every reasonable effort has been made by the Soldier to alleviate the dependency or hardship conditions without success, and (4) separation is the only readily available means of eliminating or materially alleviating the dependency or hardship conditions.  The Soldier must request separation because of dependency or hardship in writing.

20.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) sets forth the basic authority for the assignment, attachment, detail, and transfer of USAR Soldiers.  Chapter 7 relates to the removal of Soldiers from an active status and states that Soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve.

21.  Army Regulation 614-200 (Enlisted Assignments and Utilization Management) prescribes the reporting, selection, assignment and utilization of enlisted personnel, excluding initial entry training.  It provides general assignment policies and responsibilities for managing the enlisted force.  Chapter 5, section III, provides that Soldiers may be reassigned, deleted, or deferred from assignment instruction or attached as a result of an approved compassionate request.  Normally, the following conditions alone are not a basis for a compassionate request:  (1) Soldier's desire is to be in a new area; (2) divorce or separation that is the result of family separation due to military requirements; (3) legal actions and court appearances for matters relating to divorce and/or child custody issues; (4) recent awarding of custody of dependent child or children to the Soldier under the terms of a divorce or legal separation by temporary or permanent court order; (5) sole parenthood; (6) pregnancies involving threatened miscarriage, breech birth, cesarean section, or Rh (rhesus factor – blood group) incompatibility of spouse; (7) the problem can be expected to be resolved by family members joining the Soldier at his or her duty station; (8) minor allergies suffered by the members of the family due to climatic conditions; (9) problems relating to home ownership or housing shortages; (10) financial problems alone or as the result of mismanagement of financial affairs by the Soldier or the Soldier's family, or problems related to an off-duty job, spouse's job, or private business activities; and (11) chronic problems relating to parents or parents-in-law.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been considered.  The applicant's situation which required her to choose between her military career and her mother was duly noted.

2.  She was ordered to active duty for a period of 365 days in support of Operation Enduring Freedom as a member of her Reserve unit effective 7 February 2003 with follow-on assignment to Fort Lee, VA, with a reporting date of 10 February 2003.  Although she initially requested a transfer to her USAR unit at its home station at Fort Meade, her unit was mobilized and transitioning to Fort Lee, VA, as a mobilization entity.

3.  Since her mother was not her legal dependent, her 13 March 2003 compassionate reassignment request was denied in accordance with governing regulations.

4.  The evidence shows she requested discharge under the provisions of Army Regulation 635-200, paragraph 6-3a, by reason of hardship/dependency of a family member on 3 April 2003.  Her hardship discharge request was approved on 15 April 2003 and she was discharged accordingly.

5.  Although her DD Form 214 shows she completed 21 years, 8 months, and 10 days of prior inactive service, an audit of her records revealed she only completed 19 years, 3 months, and 23 days of qualifying service for Non-Regular retirement (retired pay at age 60).  Based on completion of less 20 years of qualifying Reserve service, she was not eligible for retirement.  She submitted a request for a hardship discharge and her request was approved.

6.  Her administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized her rights.  She was properly discharged in accordance with pertinent regulations with due process.

7.  In view of the foregoing, there is no basis for granting the 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)                                         AR20140003510



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ABCMR Record of Proceedings (cont)                                         AR20140003510



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