IN THE CASE OF:	 

		BOARD DATE:	  22 January 2015

		DOCKET NUMBER:  AR20140008389 


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, in effect, correction to the authority and narrative reason for her honorable discharge.

2.  The applicant states she was honorably discharged based on a defective or unfilled enlistment.

   a.  She states the Army recruiter gave her false information indicating that her children would be able to accompany her to her duty station after she completed training.  When her children joined her at her permanent duty station, the situation created a personal hardship and resulted in her early separation from the Army.

   b.  She states that she has applied for veterans' benefits, but has been told she does not qualify for benefits because she does not have sufficient qualifying military service.  She currently has claims for disability with both the Department of Veterans Affairs (VA) and Social Security Administration.  She adds that she is unable to work and had no income during 2013 and 2014.

   c.  She has had spinal surgeries; she suffers from chronic pain, depression, and mental health issues; and she has attempted suicide on three occasions. Her neurologist asked if she had been in an accident or exposed to chemicals and she told him, "No."  However, she recently learned that the United States Congress passed House of Representatives (H.R.) 411, Fort McClellan Health Registry Act, which established a registry for personnel who were stationed at Fort McClellan, AL.  She states that she was stationed there and believes she may have been exposed to dangerous chemicals.  She adds that if her exposure to chemicals was the cause of her illnesses, she should have been discharged for medical reasons.

3.  The applicant provides copies of:

* her DD Form 214 (Certificate of Release or Discharge from Active Duty)
* personal income documents
* H.R. 411
* post-service civilian medical records

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 U.S. Army Reserve on 30 September 1991 for a period of 8 years.  On 7 January 1992, she further enlisted in the Regular Army for a period of 5 years.

3.  A DA Form 3286-69 (Statement of Understanding for Persons Having Dependents in the Custody of Another) shows the applicant acknowledged:

* "I, J__ A__ S____, am the parent of D____ N. K____ and C____ W. K____ and certify that the children has (have) previously been placed and are in the custody of the other parent or another adult by court order.  I further certify the custody agreement was and is intended to remain in full force and effect during the term for which I am now enlisting.  I understand that if I regain custody of this (these) child(ren), either by court decree, or in accordance with applicable state law, or if the child(ren) is (are) residing with me in lieu of the legal custodian, I will be processed for involuntary separation for fraudulent entry unless I can show that the regaining custody is not contrary to the above stated intent (e.g., death or incapacity of other parent or custodian)."
* "Warning – Read Carefully:"

* "I hereby certify that no person, agency or member of the Army, to include my recruiter or guidance counselor has required me to give up custody of my child(ren) as a condition for enlistment.  I understand that the Army merely recognizes that some persons for personal reasons may have relinquished custody of their child or children."

* "I further state that no person, agency or member of the Army has advised me that I will be allowed to regain custody of my child(ren) while in the Army, nor has given me any perception or assurance that the policy as stated above is waiveable or not upheld once enlisted."

* The applicant and guidance counselor (Sergeant First Class M____ L. W____) placed their signatures on the document on 7 January 1992.

4.  On 7 January 1992, the applicant was assigned to Fort McClellan, AL, for
One Station Unit Training.  Upon completion of advanced individual training (AIT), she was awarded military occupational specialty (MOS) 95B (Military Police (MP)).

5.  The applicant's DA Form 2-1 (Personnel Qualification Record), item 35 (Record of Assignments), shows on:

* 13 May 1992, she departed Fort McLellan, AL
* 23 May 1992, she arrived at U.S. Army MP Unit, Seneca Army Depot, Romulus, NY
* 5 October 1992, she departed Seneca Army Depot
* 23 October 1992, she arrived at U.S. Army MP Unit, Sierra Army Depot, Herlong, CA

6.  On 28 October 1992, the applicant submitted a request for hardship discharge under the provisions of Army Regulation (Personnel Separations – Enlisted Personnel), chapter 6 (Separation Because of Dependency or Hardship).

   a.  She stated that upon entrance into the Army, her recruiter (Staff Sergeant (SSG) J____ D____) assured her that after completion of basic training and AIT she would be able to have her children with her at her first duty station.  Upon arrival at Seneca Army Deport, she learned this was not allowed and that she would be subject to separation from the Army for fraudulent enlistment.

   b.  She provided a copy of the DA Form 3286-69 with her request.  She stated that her recruiter told her that "the only time this form would be enforced is if [her] children came in the way of the Army."

   c.  She also provided statements from members of her family.

    	(1)  A statement by the applicant's father, R____ C____, dated 24 June 1992, shows he talked with SSG D____ about the applicant being able to have her children live with her after training and SSG D____ assured him, "everything would be okay and that [the applicant] would be able to have her children with her after she went to her duty station."

    	(2)  A statement by the applicant's mother, E____ C____, dated
27 October 1992, that shows she was unable to keep the applicant's children because of the responsibility of owning and operating a restaurant, and her husband was a long-haul truck driver.  She added that the children had stayed with their father for a short period of time, but he did not take care of them properly.  She concluded that the children needed the care and presence of their mother (i.e., the applicant).

   	(3)  A statement by the applicant's sister, M____ H____, dated 27 October 1992, that shows she provided notice that she was no longer able to keep the applicant's children.  She believed it would only be temporary and, due to the emotional and financial strain of having the additional children, she would have to sign custody of the children back to the applicant.

   d.  The applicant concluded by stating her children were going through tremendous emotional stress, no other family members were available to take care of them, and that she must regain custody of them.  She requested approval of her request for hardship discharge.

7.  A review of the applicant's military personnel record failed to reveal that the chain of command took any action on the request for hardship discharge.

8.  A DA Form 4187 (Personnel Action), dated 1 December 1992, shows the applicant requested separation under the provisions of Army Regulation 635-200, chapter 7 (Defective Enlistments and Inductions), paragraph 7-16, based on defective enlistment or unfulfilled enlistment agreement.

   a.  The request included a copy of the applicant's request for hardship discharge with (the above mentioned) enclosures.

   b.  It also included a memorandum from her commander, dated 1 December 1992.  The commander indicated it had been brought to her attention that the applicant came into the Army on a Defective Enlistment.  She added that the applicant wants to be with her children, but bringing her children to the installation would constitute fraudulent enlistment, even though it was due to a misrepresentation by recruiting personnel and not through any fraudulent conduct on the part of the Soldier.

   c.  She recommended approval of the applicant's discharge based on defective enlistment.

9.  The separation authority approved the recommendation for separation and directed the applicant be issued an Honorable Discharge Certificate.

10.  The applicant's DD Form 214 shows she was honorably discharged on 
22 December 1992 under the provisions of Army Regulation 635-200, paragraph 7-16, based on defective or unfulfilled enlistment.  She had completed 11 months and 16 days of total active service.

11.  A review of the applicant's military personnel record failed to reveal evidence of any unfitting medical condition(s).

12.  A further review of her military personnel record failed to reveal any evidence that she applied to the Army Discharge Review Board for review of her discharge within its 15-year statute of limitations.

13.  In support of her application the applicant provides the following documents.

   a.  Forms W-2 (Wage and Tax Statements) for 2010 and 2012 and pay records for 2011 that show her personal income for the specified periods.

   b.  H.R. 411, dated 23 January 2013, that shows the Secretary of the VA shall establish and maintain a special record to be known as the "Fort McClellan Health Registry" containing:

* the name of each individual who, while serving as a member of the Armed Forces, was stationed at Fort McClellan, AL, at any time during the period beginning 1 January 1935 and ending on 20 May 1999, and who:

* applies for care or services from the VA
* files a claim for compensation
* dies and is survived by a spouse, child, or parent who files a claim for dependency and indemnity compensation
* requests from the Secretary a health examination
* receives from the Secretary a health examination

* relevant medical data relating to the health status to each individual

   c.  Post-service medical records spanning the period from 17 August 2009 to 
23 April 2014 that show the medical diagnoses and treatment for conditions that the applicant identified in her application to this Board.

14.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel from the Army.  

   a.  Chapter 6 provides that a Soldier may be discharged or released because of genuine dependency or hardship.  Dependency exists when death or disability of a member of a Soldier's (or spouse's) immediate family causes that member to rely upon the Soldier for principal care or support.  Hardship exists when in circumstances not involving death or disability of a member of the Soldier's (or spouse's) immediate family, separation from the Service will materially affect the care or support of the family by alleviating undue and genuine hardship.

   b.  Chapter 7 provides the authority, criteria, and procedures for the separation of Soldiers because of minority, erroneous enlistment, induction or extension of enlistment, defective enlistment agreement, and fraudulent entry.
Paragraph 7-16 provides, in pertinent part, a defective enlistment agreement exists when the Soldier was eligible for enlistment in the Army, but did not meet the prerequisites for the option for which enlisted.  This situation exists, in the following circumstances:

    	(1)  a material misrepresentation by recruiting personnel, upon which the Soldier reasonably relied and thereby was induced to enlist for the option, or 

    	(2)  an administrative oversight or error on the part of the recruiting personnel in failing to detect that the Soldier did not meet all the requirements for the enlistment commitment, and 

    	(3)  the Soldier did not knowingly take part in creation of the defective enlistment.

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) sets forth policies, responsibilities, and procedures in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Chapter 3 (Policies) provides that when a member is being separated by reason other than physical disability, his/her continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he/she was unable to perform his/her duties or that acute grave illness or injury or other deterioration of physical condition occurring immediately prior to or coincident with separation rendered the member unfit.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the authority and narrative reason for her discharge should be changed to a hardship discharge or medical discharge because she enlisted based on false information that was provided by the recruiter relating to custody of her children, which resulted in her early separation from the Army, and she now suffers from many medical conditions.

2.  The applicant's comment that she relied on false information is not in dispute.

   a.  However, the evidence of record shows, at the time of her enlistment, the applicant completed a DA Form 3286-69 in which she certified that her children were in the custody of the other parent or another adult by court order.  She also certified that the custody agreement was intended to remain in full force and effect during the term for which she was enlisting.  In addition, she acknowledged that no person, agency or member of the Army had advised her that she would be allowed to regain custody of her children while in the Army, nor had anyone given her any perception or assurance otherwise (emphasis added).

   b.  The evidence of record fails to show the applicant's children were in the custody of the other parent or with another adult by court order (emphasis added).  Thus, the evidence of record indicates the applicant completed the document knowing that the custody arrangement for her children was not in compliance with the statement she signed.

   c.  Even if the applicant's recruiter provided her information or the impression that her children would be able to accompany her to her duty station, the Statement of Understanding for Persons Having Dependents in the Custody of Another provided information that was contrary to any perception or assurance she may have been given.

   d.  In any event, the evidence of record supports the fact that the enlistment contract was defective in that the applicant was eligible for enlistment in the Army, but she did not meet the prerequisites for enlistment because her children were not in the custody of the other parent or another adult by court order.
3.  Although the applicant prepared a request for hardship discharge, there is no evidence of record that shows the request for discharge was submitted into command channels; that she met the criteria for a hardship discharge; and/or that the request for hardship discharge was approved by the separation authority.

4.  The evidence of record shows that when a member is being separated by reason other than physical disability, her continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that she was unable to perform her duties.   The evidence of record fails to support a conclusion that the applicant was unable to perform her duties due to any unfitting medical condition(s).

5.  The applicant's administrative separation based on defective enlistment was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize her rights.  Thus, the type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

6.  Therefore, in view of all of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

7.  The ABCMR does not grant requests for changes of discharges solely for the purpose of making the applicant eligible for veterans' benefits and other government programs.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veterans' benefits is not within the purview of the ABCMR.  Further, the "Fort McClellan Health Registry" (H.R. 411) falls under the purview of Secretary of the VA.  Accordingly, any questions regarding eligibility for any related benefits should be addressed to the VA.

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)                                         AR20140008389



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ABCMR Record of Proceedings (cont)                                         AR20140008389



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