IN THE CASE OF:	  

		BOARD DATE:	  5 May 2015

		DOCKET NUMBER:  AR20140013717 


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 under honorable conditions (general) discharge.

2.  The applicant states she did not enter the military fraudulently.  She had to show proof she had relinquished custody of her son to her mother before she was permitted to enter the military and that is what she did.

	a.  She completed her training and she was sent directly to Iraq for 1 year.  She felt like she was going to lose her life and her mind.

	b.  When she returned from Iraq she got her son.  Many of her fellow Soldiers told her she could get her son back after she returned home and became a permanent party Soldier.  She later found out her command was not in agreement.

	c.  When her mother was in the Army she got her children back [including the applicant] after going to her permanent duty station with no problems from her chain of command.  They actually supported her mother.

	d.  She wanted to be with her son.  No one could possibly understand this unless they were forced into the same position.  Getting her son was not going to affect anything because she already had a plan for his care.  Her command did not give her a chance to prove herself.  She does not feel her enlistment should have been considered a fraudulent enlistment because she had already been on active duty for over 2 years.  She believes she was discharged unfairly and unjustly.

	e.  She has gotten past the fact she was discharged but cannot get past how her service has affected her.  No one knows the traumatic things she endured while she was deployed; these things still affect her today.  She is currently being seen by Department of Veterans Affairs (VA) doctors and she has been told she suffers from post-traumatic stress disorder (PTSD) along with some other medical conditions.  Although some days are still a struggle she is trying to get her life on track.  She does not want anyone to look at her negatively because of her discharge.  Her discharge greatly affects her benefits and her spirit because she knows she did not enlist fraudulently.

3.  The applicant provides:

* a self-authored statement, dated 31 July 2014
* legal court documents from the Juvenile Court of Richmond County, Georgia, which show she relinquished custody of her son to her mother in September 2008
* her DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 12 April 2011

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.  On 17 September 2008, based upon the applicant's petition, the Juvenile Court of Richmond County, Georgia ordered that the applicant and her mother would share joint legal custody of the applicant's son.  The applicant's mother was designated as the primary custodian and the applicant was designated as the non-custodial parent.  The court also ordered that the applicant was responsible for providing all support and benefits for her son in accordance with the laws of the State of Georgia and in accordance with Army regulation.
3.  Her record contains a DD Form 1966 (Record of Military Processing – Armed Forces of the United States), dated 3 October 2008, that shows in:

* in item 8 (Marital Status), she had never been married
* item 10 (Date of Birth), she was born on 11 July 1987 (21 years old)
* item 22 (Marital/Dependency Status and Family Data), she indicated no one was dependent upon her for support and there wasn't any court order or judgment in effect that directed her to provide alimony or support for children

4.  She enlisted in the Regular Army on 10 October 2008.  Her enlistment packet contains a DA Form 3286 (Annex A – Statement for Enlistment – United States Army Enlistment Program – U.S. Army Delayed Enlistment Program), dated      10 October 2010, which shows she acknowledged/understood and agreed that:

	a.  She had not concealed any medical information, nor had she been told by anyone (judge, lawyer, any Army personnel, family, friends, etc.) that she did not have to list a charge because the charge(s) were dropped, dismissed, not filed, expunged, stricken from the record or were juvenile related.  She further stated that if anyone had told her to conceal, omit from her application, or falsify any information, she was required to report any misconduct on anyone's part that it involved her recruiting process; the recruiting battalion executive officer.

	b.  No person had advised her to conceal any information with respect to her enlistment.

5.  Her enlistment contract does not contain a DA Form 3286 (Statements for Enlistment (Parts I through IV)), which is required to be executed by all applicants that indicate, at time of enlistment, that they have a child in the custody of another adult.  

6.  Her record and/or enlistment contract does not contain the required certificate, in which she would have acknowledged her intent, at the time of enlistment, not to enter into the Army with the expressed intention of regaining custody after enlistment.

7.  Upon enlistment, she reentered active duty and completed her initial entry training, was awarded military occupational specialty 25Q (Multichannel Transmission System Operator/Maintainer), attained the rank/grade of specialist (SPC)/E-4, and served in Iraq from 20 August 2009 to 16 July 2010.


8.  Her record contains a DA Form 4856 (Developmental Counseling Form), dated 1 December 2010, which shows she was counseled for violating Article   83 of the Uniform Code of Military Justice (UCMJ).  Her commander informed her that he was initiating separation actions against her under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 7-17b(8) (Incident of fraudulent entry - Misrepresentation of intent with regard to legal custody of children).  During this counseling session, her commander informed her that if she was involuntarily separated, she could receive an honorable discharge, an under honorable conditions (general) discharge, or an under other than honorable conditions discharge.  She was advised that if she received a discharge under other than honorable conditions, she would be ineligible for reenlistment and for most benefits, including payments of accrued leave, transitional benefits, the Montgomery GI Bill, VA benefits, and she may also face difficulty in obtaining civilian employment.  She signed the counseling form on 13 December 2010.

9.  On 27 January 2011, the applicant's immediate commander formally notified the applicant of his intent to initiate separation actions under the provisions of Army Regulation 635-200, chapter 7, section IV, paragraph 7-17b(8).  He stated the reason for his proposed action was that, on 19 September 2008, she petitioned the Richmond County Juvenile Court of Richmond County, Georgia to change custody of her biological son to her mother.  By Court Order, dated  
19 September 2008, her mother was granted joint legal custody and designated as the primary custodian, ensuring her eligibility for enlistment in the armed services.  However, in August 2010, she petitioned the Court for and regained sole custody of her son in an order dated 26 October 2010, in violation of the stated intent of her enlistment contract, per Army Regulation 601-210 (Active and Reserve Components Enlistment Program).  She failed to show cause for a need to regain custody, such as death or incapacity of the person who had been previously granted custody.

	a.  Her commander recommended she be retained and informed her that his recommendation and her reply would be submitted to the Commander, 35th Signal Brigade, who was the separation authority and would make the final decision in her case.  He also informed her that the intermediate commander and the separation authority were not bound by his recommendation as to characterization of service and could direct that her service be characterized as under honorable conditions.

	b.  Her commander also informed her that she had the right to consult with counsel and could submit statements in her own behalf.  

	c.  She acknowledged receipt of her commander's notification on 27 January 2011.

10.  On 15 February 2011, she consulted with legal counsel on the basis for the contemplated action to discharge her for reasons under Army Regulation
35-200, paragraph 7-17 and its effects; of the rights available to her; and of the effect of any action taken by her in waiving her rights.  She also indicated she understood that if she had less than 6 years of total active and reserve military service at the time of separation, under Army Regulation 635-200, she was not entitled to have her case considered by an administrative separation board unless she was being considered for an other than honorable conditions or separation under Army Regulation 635-200, chapter 15.

	a.  She requested consulting counsel, indicated she had submitted statements in her own behalf, and indicated she understood that if she was being considered for separation for fraudulent entry, her enlistment could be voided under certain circumstances and that all pay and allowances would be suspended immediately upon verification of the fraudulent entry.

	b.  She also indicated she understood she could expect to encounter substantial prejudice in civilian life if a general discharge was issued to her.  She further understood that as a result of the issuance of a discharge under other than honorable conditions she could be ineligible for many or all benefits as a veteran under both Federal and State laws and that she could expect to encounter substantial prejudice in civilian life.  She understood that if she received a discharge/characterization of service that is less than honorable, she could make application to the Army Discharge Review Board or the ABCMR for upgrading; however, she also realized that an act of consideration by either Board did not imply that her discharge would be upgraded.

11.  Her records contain a statement, dated 22 February 2011, wherein she indicated that she gave custody of her son to her mother in September 2008 in order to join the military.  As stated in the custody paperwork, she did that to provide financially for herself and her son.  Her mother felt that she was entitled to all of the applicant's money or full basic allowance for housing, which the applicant was not receiving.  Her mother had her son calling her mom, would rarely put him on the phone for her to speak with him, and did not want him to know the applicant was his mother.  Her mother kept saying he belonged to her but she did not feel that she should have to come out of pocket to care for him.  The applicant's mother wrote a letter to the applicant's advanced individual training (AIT) commander stating the applicant was not sending money home.  This almost caused her to get an Article 15 for failure to provide support to her child.  She had to prove to her chain of command that she was indeed paying her mother.  When she got to her unit in June 2009, the unit deployed soon after to Iraq for 11 months.  Before she left her mother was saying she needed to find a way to get her son back.  Her unit first sergeant (1SG) said she would have to wait until the unit returned from Iraq.  

	a.  During her deployment she endured a number of problems created by her mother, emotional issues from deaths of friends and family members, and mental stress from just being in Iraq because it was her first deployment.  She and her mother fought constantly over the same issues and her mother repeatedly stated that when the applicant returned she needed to get her son because her mother no longer wanted to keep the child.  The applicant's son went to stay with her father in March 2010.  Her father said he would only keep her son until she returned from her deployment.  She spoke with her sergeants (SGT) about the situation and what she should do about her son.  Her SGTs told her to wait until she returned and then get the custody papers changed to show she had sole custody of her son, and after that was done the SGTs would help her move forward from that point.  When she returned in July 2010, she did as her SGTs instructed.  She was under the impression she was doing the right thing.  

	b.  She went to the same lawyer who handled her previous custody request and he told her he would take action to reverse the court/custody orders.  Everything written in the court documents was written the way her attorney instructed, so that her request would hold up in court, before the presence of a judge, without any issues.  After she got back, she turned in the legal paperwork to the company in September 2010.  She was given a DA Form 4187 (Personnel Action) for BAH.  After about 2 weeks, she was told she needed to resubmit her paperwork because it had been misplaced.  Approximately 3 weeks later, her 1SG asked for her paperwork again, saying he never saw her paperwork.  On the other hand, she was also dealing with family issues; her family kept asking her what was taking so long to get her son back.  Her family refused to believe she was trying to get housing; they thought she was lying about the delays at the company level.  

	c.  She asked her SGT about housing and he told her the waiting list could be long and getting on it would be her best option, because once her BAH started she would have to get out the barracks.  However, soon after this conversation a representative called her from the housing office about an open unit.  When she went to speak with her she told the applicant and the SGT (over the phone) that her BAH would be started after she signed the paperwork for housing, and that if it did not start they would not take any money out of her check until it actually started.  Her SGT told the housing representative he would have to talk to leadership.  Her SGT then called her back and told her to go ahead and sign the paperwork; as such, she was under the impression that she was doing the right thing.  However, later it became known that he had never spoken to leadership.

	d.  As time passed her father told her she had until 1 November 2010 to get her son, and there would be no exception.  When the time came, she had no choice but to get her son, even though the company had not finished all of the paperwork.  She did have a family care plan that listed her father as the long term provider, but she had to replace him as the long term provider and she had not found anyone to replace him.  After retrieving her son she realized her father had not been feeding or bathing the child, as evidenced by the fact that he was severely dehydrated and dirty.  

	e.  After all of this, she was told she was facing a possible chapter for fraudulent enlistment.  She was told she could talk to the higher chain of command, but she was never afforded the opportunity.  She even had to go to Army Emergency Relief (AER) for money because of the housing that was being taken out of her pay check.  AER almost turned her away because she was facing a chapter.  Additionally, her family has been completely torn apart because of this situation.  She was being forced to choose between being a mother or being a Soldier.

   f.  Furthermore, there were many females in her unit, who are in their first enlistment and had regained custody of their children with no issues.  Being put out of the military for simply asking to ensure her son's safety would not only defeat the purpose of her joining but show the military does not care about the Soldiers that fight for America's freedom.  She had lost a lot more than she gained in this process. 

12.  On 12 March 2011, the intermediate commander recommended the applicant's separation in accordance with Army Regulation 635-200, paragraph 7-17b(8), and that she receive an under honorable conditions (general) characterization of service.  

13.  On 12 March 2011, the separation authority directed her discharge under the provisions of Army Regulation 635-200, paragraph 7-17b(8), with an under honorable conditions (general) characterization of service.

14.  On 12 April 2011, she was discharged accordingly.  The DD Form 214 she was issued at the time shows she was discharged under the provisions of Army Regulation 635-200, chapter 7, section V, for fraudulent entry with an under honorable conditions (general) discharge.  She completed 2 years, 6 months, and 3 days of creditable active service, of which 10 months and 27 days were credited as foreign service in Iraq.  Her separation code was listed as "JDA" and her reentry (RE) code was listed as "3."  Additionally, she was awarded or authorized the:

* National Defense Service Medal
* Global War on Terrorism Service Medal
* Iraq Campaign Medal with one bronze service star
* Army Service Ribbon
* Overseas Service Ribbon

15.  On 4 June 2012, the Army Discharge Review Board determined that she was properly and equitably discharged and denied her request for a change in the character and/or reason for her discharge.

16.  Army Regulation 601-210, paragraph 2-10 states an applicant does not meet dependency requirements if the applicant is without a spouse and has custody of at least one dependent under the age of 18.  

	a.  If an applicant is without a spouse and the child or children have been placed in the custody/guardianship of the other parent or another adult by court order prior, or by written custody agreement between parents that is valid under State law prior to application for enlistment, and the applicant is not required to pay support for more than three dependents, then the applicant is eligible to process for enlistment.  The court order or custody agreement must clearly indicate that the applicant does not have physical custody of any child.  The bottom line issue is actual physical custody of the child(ren).  

	b.  Those applicants who, at time of enlistment, indicate they have a child or children in the custody of the other parent or another adult, will be advised and required to acknowledge by certification that their intent at time of enlistment was not to enter into the Army with the expressed intention of regaining custody after enlistment.  Applicants will be required to execute a DA Form 3286.  All applicants will be advised that if they regain custody during their term of enlistment, they are in violation of the stated intent of their enlistment contract.  They will (unless they can show cause, such as death or incapacity of the person who has custody) be processed for separation (involuntary) for fraudulent enlistment. 

17.  Army Regulation 600-200, paragraph 7-17b(8) states a fraudulent entry is the procurement of an enlistment, re-enlistment, or period of active service through any deliberate material misrepresentation, omission, or concealment of information which, if known and considered by the Army at the time of enlistment or re-enlistment, might have resulted in rejection.  This includes all disqualifying information requiring a waiver.  A Soldier who was an applicant without a spouse at the time of enlistment, and who executed the certificate required by Army Regulation 601-210, will be processed for separation for fraudulent entry if custody of a child is regained by court decree, as provided by State law, or as a result of a child resuming residency with the Soldier instead of the legal custodian.  Because the Soldier certified at enlistment that the custody arrangement was intended to remain in full force and effect during the term of enlistment, the burden is on the Soldier to demonstrate that regaining custody is not contrary to statements made at the time of enlistment.

	b.  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.

	c.  Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's commander initiated separation against her for fraudulent entry because she petitioned the court for, and regained, sole custody of her son in violation of the stated intent of her enlistment contract.  

2.  Army Regulation 601-210 states, in effect, that a Soldier who has a child without a spouse at the time of enlistment, and who executed the certificate required by Army Regulation 601-210 (DA Form 3286 (Statements for Enlistment (Parts I through IV)), will be processed for separation for fraudulent entry if custody of a child is regained by court decree, because the Soldier certified at enlistment that the custody arrangement was intended to remain in full force and effect during the term of enlistment.  

3.  The evidence of record shows:

	a.  On 17 September 2008, the Juvenile Court of Richmond County, Georgia ordered that the applicant and her mother would share joint legal custody of the applicant's son, but her mother would have sole custody of the child and the applicant would be listed as the noncustodial parent. 

	b.  The applicant enlisted in the Regular Army on 10 October 2008.  Her enlistment contract does not contain the certificate required by Army Regulation 601-210 (DA Form 3286 (Statements for Enlistment (Parts I through IV)) that certifies the custody arrangement was intended to remain in full force and effect during the term of enlistment (emphasis added).

	c.  After returning from a deployment in Iraq, she petitioned the court for and regained sole custody of her son on 26 October 2010.

	d.  She was discharged under the provisions of Army Regulation 635-200, chapter 7, section V, for fraudulent entry with an under honorable conditions (general) discharge.

4.  Her commander recommended she be retained, and this indicates her service and performance, in his opinion, were sufficiently meritorious to warrant retention, and he was in the best position to judge her performance and characterization as a Soldier.  Additionally, her record does not contain any evidence to indicate she was a disciplinary problem and she was never disciplined under the UCMJ.

5.  There is no evidence that shows she agreed not to regain custody of her son during her first enlistment, and she said as much in her personal statement to her chain of command.  This document being present in her enlistment contract, and her supposed violation of the agreement made in this document, is the sole reason as required by regulation that her commander initiated separation action in the first place.  However, as previously stated, her enlistment contract does not contain this certificate.

6.  Her record is absent the certifying enlistment document that shows she agreed not to seek custody of her child during her initial enlistment.  Therefore, the evidence of record is absent substantiating documentation that shows she fraudulently enlisted.   

7.  It appears the applicant may have been erroneously discharge.  Nevertheless, she served on active duty for over 2 years and was deployed to Iraq directly after her initial training.  Her desire to regain custody of her son was no doubt strongly influenced by her deployment.  

8.  The ABCMR is charged with deciding cases on behalf of the Secretary of the Army with justice, equity, and compassion.  Since the applicant's discharged appears to be based on a nonexistent certificate, and since there is no evidence she was involved in any misconduct or that she was a disciplinary problem, as a matter of justice, equity and compassion, the Board has determined her overall record of service merits a characterization of service upgrade to fully honorable by reason of Secretarial Authority, with an SPD code of "JFF" and an RE code of "1." 

BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was 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 voiding her DD Form 214 and issuing her a new DD Form 214 to show she was discharged with an honorable characterization of service by reason of Secretarial Authority, with an SPD code of "JFF" and an RE code of "1." 



      ___________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)                                         AR20140013717



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ABCMR Record of Proceedings (cont)                                         AR20140013717



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