IN THE CASE OF:	 

		BOARD DATE:	  31 March 2015

		DOCKET NUMBER:  AR20140013889 


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 of:

* Item 25 (Separation Authority)
* Item 26 (Separation Code)
* Item 28 (Narrative Reason for Separation)
 
of her DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 21 December 1990.

2.  The applicant states:

   a.  She was activated from the U.S. Army Reserve (USAR) to serve in Operation Desert Shield/Storm in 1990.  While training at Fort Benjamin Harrison, IN, she was honorably discharged based on being a single parent.  She had served in the USAR for almost five years and had a family guardianship plan for her son.

   b.  Upon being activated, her family care plan was no longer an option and she had to care for her son.  The applicant believes she should have been separated in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 6, which provides for the separation of Soldiers due to genuine dependency or hardship.  

   c.  She is in the process of applying for Department of Veterans Affairs (VA) health benefits and she was told she was not eligible because of her discharge status.

3.  The applicant provides a copy of her DD Form 214 and documents pertaining to her administrative discharge in accordance with paragraph 5-8, Army Regulation 635-200.

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 USAR on 22 October 1985.  She subsequently completed training in September 1986 and she was awarded military occupational specialty 94B (Food Service Specialist).

3.  On 13 November 1990, the applicant requested separation from the U.S. Army under paragraph 5-8, Army Regulation 635-200.  The applicant stated during the five years she served in the USAR she never established a family support plan for her 5-year old son.    

4.  On 16 November 1990, the applicant was counseled by her immediate commander for not having an adequate family care plan.  The applicant was informed if she failed to complete a proper family care plan her commander would be forced to involuntarily release her from active duty.

5.  On 26 November 1990, the applicant's immediate commander initiated action to involuntarily separate the applicant for non-availability for deployment.  It was further noted the applicant stated that she had an inadequate family care plan.

6.  On 26 November 1990, the applicant was advised by consulting counsel of the basis for the contemplated action to separate her for non-availability for deployment in accordance with paragraph 5-8, Army Regulation 635-200, and its effects; of the rights available to her; and the effects of any action taken by her in waiving her rights.

7.  On 14 December 1990, consistent with the recommendations of the applicant's chain of command, the separation authority approved the applicant's  separation in accordance with Army Regulation 635-200, paragraph 5-8, for the inability to perform prescribed duties due to parenthood with an honorable characterization of service.  He further directed that she be transferred to the Individual Ready Reserve.  On 21 December 1990, the applicant was accordingly released from active duty.  The DD Form 214 she received shows in:

* Item 25 – PARA 5-8
* Item 26 – LDG
* Item 28 – INABILITY TO PERFORM PRESCRIBED DUTIES DUE TO PARENTHOOD

8.  Army Regulation 635-200 establishes the policies and procedures for the separation of enlisted Soldiers.  

   a.  Paragraph 5-8 provides for the involuntary separation of Soldiers due to parenthood.  That paragraph states that Soldiers will be considered for involuntary separation when parental obligations interfere with fulfillment of military responsibilities.  Specific reasons for separation because of parenthood include inability to perform prescribed duties satisfactorily, repeated absenteeism, late for work, inability to participate in field training exercises or perform special duties, and non-availability for worldwide assignment or deployment according to the needs of the Army.  Separation processing may not be initiated under this paragraph until the Soldier has been adequately counseled and afforded the opportunity to overcome the deficiencies.

   b.  Paragraph 6-3 provides for the discharge or release of Soldiers from active duty because of genuine dependency or hardship.  Dependency exists when death or disability of a member of a Soldier'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 immediate family, separation from the Service will materially affect the care or support of the family by alleviating undue and genuine hardship.  That same paragraph states that Soldiers who are sole parents and whose children are under 18 years of age and reside within the household may apply for separation under hardship.  A "sole parent" is defined as a parent who is single by reason of never having been married, who is divorced or legally separated and has been awarded child custody by judicial decree or court order, or who is a widow/widower.  Separation under this paragraph is voluntary and requires that the Soldier must request separation from the service because of dependency or hardship in writing.  Inability to obtain an approved dependent care plan does not qualify the Soldier for separation under this provision.

9.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) indicates that SPD code LDG is reflective of an involuntary separation under the provisions of Army Regulation 635-200, paragraph 5-8, for inability to perform prescribed duties due to parenthood.  SPD code KDG is assigned to Soldiers who are voluntarily separated under the provisions of Army Regulation 635-200, paragraph 6-3, for parenthood of married service woman or sole parent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to correct items 25, 26, and 28 of her DD Form 214  for the period ending 21 December 1990 has been carefully considered and found to lack merit.

2.  The applicant readily admits she failed to maintain a family care plan for approximately five years while serving in the USAR.  Upon mobilization, evidence clearly indicates the applicant was counseled by her immediate commander for failing to maintain a viable family care plan; therefore, she was unable to perform her prescribed duties due to parenthood.

3.  The applicant contends she should have been separated in accordance with Army Regulation 635-200, chapter 6, which provides for the separation of Soldiers due to genuine dependency or hardship.  However, the inability to obtain an approved dependent care plan does not qualify the Soldier for separation under this provision.

4.  The applicant's separation due to parenthood was proper and equitable and in accordance with the regulations in effect at the time.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

5.  The ABCMR does not grant requests solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her military record.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for health care and other benefits should be addressed to the VA.

6.  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 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)                                         AR20140013889





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140013889



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1