IN THE CASE OF:	  

		BOARD DATE:	  2 June 2015

		DOCKET NUMBER:  AR20140016265 


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 her general discharge under honorable conditions be upgraded to an honorable discharge, the narrative reason for discharge be changed, and the reentry eligibility (RE) code 3 be changed so she can reenlist in the Army. 

2.  The applicant states she believes her discharge should be upgraded because her Family Care Plan failed.  

	a.  After she finished basic training her Family Care Plan began to fail.  Her mother was having a hard time coping and because of this her 5-year old son was not being taken care of properly.  Shortly after she began advanced individual training (AIT) her company commander placed her on leave to go to Georgia to try to fix the problem between her mother and her son.  After returning to AIT, she soon found out that things at home had made a turn for the worse, she had received a phone call that her mother and son were about to be evicted. She went to her company commander and explained that her son was going to be taken into Child Protective Services due to her mother's unfortunate living arrangement.  Her commander then told her that training comes first and he denied her request for leave.  She did what she thought any mother would do for her child and left AIT without permission.  She felt that her son really needed her. 

	b.  A few days later she returned to AIT with her son.  She couldn't leave him behind in Georgia because she had no one to care for him.  When they arrived at AIT, she was immediately told her son could not be with her during training and that she needed to take her son back Georgia and find someone to take care of him until her training ended.  She was placed on leave and she and her son returned to Georgia.

	c.  A few days after her leave began she called her commander and explained that she found someone to care for her son and they would be able to begin taking care of him in 2 days.  She asked if she could have two extra days of leave.  Her commander then told her there was no need to return to AIT and she should instead go to Fort Knox, KY because he had reported her absent without leave (AWOL).  The next day her father drove her to Fort Knox where she stayed for 3 weeks until she was discharged.  

	d.  She has since established a new Family Care Plan and she feels she was wrongfully determined to be AWOL.  She asks that the narrative reason for her discharge be changed and her RE code be changed so she can reenlist in the Army.

3.  The applicant provides:

* three character statements
* her mother's eviction papers

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 25 January 2006, she enlisted in the Regular Army.  She completed basic combat training.  She did not complete advanced individual training.

3.  On 1 June 2006, she went AWOL and returned to military jurisdiction on 28 June 2006.

4.  She was then placed on emergency leave from 28 June to 5 July 2006.

5.  On 6 July 2006, she again was reported as AWOL by her company commander when she did not return from emergency leave and she was dropped from the rolls.  She surrendered to military authorities at Fort Knox, KY on 19 July 2006.

6.  On 21 July 2006, she was evaluated by the Behavioral Health Clinic.  The examiner found that the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.  She was psychiatrically cleared for any administrative action deemed appropriate by command.

7.  Her commander notified her that action was being initiated to discharge her for the commission of a serious offense under the provisions of 
paragraph 14-12c (1) of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) with an under other than honorable conditions character of service.  The specific reason for the proposed action was her AWOL status from 1 to 28 June 2006 and again from 6 to 19 July 2006.

8.   Her commander recommended separation with a discharge under other than honorable conditions.  She was advised of her right to:

* consult with counsel
* obtain copies of documents that would be sent to the separation authority supporting the proposed separation action
* request a hearing before an administrative board
* submit statements in her own behalf
* be represented by counsel
* waive any of these rights
* withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved her discharge

9.  She acknowledged receipt of the notification of her proposed discharge.

10.  On 31 July 2006, she sought legal counsel and waived consideration of her case by an administrative separation board and appearance before such board.  She acknowledged she may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to her.  She also acknowledged that as a result of a discharge under other than honorable conditions she might be ineligible for many or all benefits as a veteran under both Federal and State laws and she could expect to encounter substantial prejudice in civilian life.  She did submit a statement in her own behalf.  
11.  In her 3-page statement, she stated the following facts and circumstances for her AWOL periods:

	a.  She went AWOL due to her family care plan failing and in no way did she have the intent to stay away permanently.  She asked that she be considered for a chapter 5-8 (Involuntary separation due to parenthood) with an honorable or general discharge.  She joined the military with the intentions of serving her country, furthering her education, become an officer, and give her son a great life like the one her father gave her.  Her father was a sergeant major in the Army and served his country for 27 years.  She always knew that she too would serve her country but due to unfortunate circumstances that she had no control of, she was unable to at this time.

	b.  Throughout basic training she occasionally contacted her mother to see how her was son doing and her mother told her numerous times that she was stressed and that she didn't know how much longer she could care for her son.  She would explain to her mother that she joined the Army to make a better life for her son and that she needed her to care for him until her training was done.  Her mother made it clear that she wasn't willing to care for him anymore.  

	c.  A week after she arrived at AIT she was placed on emergency leave because her son was on the verge of being taken away by Child Protective Services because her mother was unable to care for him anymore.  While on leave she placed her son in her sister's care hoping she would be a responsible adult and care for him until she finished her AIT.  

	d.  Shortly after she returned from emergency leave she was switched from G Company to A Company because she was sexually harassed by a female drill sergeant.  Her goal was to finish her training but instead things seemed to take a turn for the worse.  She was punished for not lying for the first sergeant, sexually propositioned, taunted, and harassed on a daily basis. She contacted the inspector general and equal opportunity office and was told that a full investigation would be done.  To her knowledge no investigation was ever conducted into her alleged complaints.

	e.  Around the second week in May, her mother contacted her company commander in A Company and explained to him that her sister basically abandoned her son and he was going from home to home and that once again he was in her mother's care and she wasn't willing to care for him.  She contacted several family members and friends but they all explained they were also unable to care for her son.  She requested emergency leave so she could find another alternative for her son until her AIT was finished.  He denied the emergency leave and told her she should let Child Protective Services take her son until her military contract was done.  She voluntarily asked to be chaptered out of the military due to her family care plan failing.  Her commander agreed at the time and told her she would be chaptered out in no more than a week.  At the last minute he told her that he wasn't going to proceed with her chapter and his reasoning was because after being harassed and taunted she contacted outside sources to investigate these matters.  He told her that was a big "no no" and told her he could care less about the well-being of her son and she would just have to get over it and deal with her son going into the state's custody because he wasn't letting her go home on emergency leave and he was not going to let her be chaptered out.  

	f.  She explained to her commander that things at home were getting worse and her mother was about to get evicted from her apartment and her son needed her immediately to avoid being taken away by the state.  He told her that it was a personal problem of her own and the Army came first.  On 1 June 2006, she went AWOL to search for someone to watch her son, but she was unsuccessful.  She returned to Fort Lee with her son on 28 June 2006 and she was immediately told she would be placed on emergency leave for 1 week due to her bringing her son to a training environment.  

	g.  While on leave she contacted her company commander on several occasions and requested an extension of her leave but he expressed to her that he wasn't willing to give her an extension and she should call him when she was successful at finding someone to care for her son.  When she contacted Fort Lee to let them know she would be returning to duty, she was told not to return there because she was dropped from the rolls.  On 19 July 2006, her father, a sergeant major, drove her to Fort Knox, KY where she surrendered to military authorities.  While at Fort Knox she encountered several bad mishaps to include sexual harassment by one of the military returnees and she was physically assaulted by one of her escorts.

12.  On 14 September 2006, her commander recommended separation with an under other than honorable conditions discharge.  The specific reason for the proposed separation action was commission of serious offenses for two periods of AWOL from 1 to 28 June 2006 and from 6 to 19 July 2006.  

13.  On 31 October 2006, the appropriate authority approved her discharge under the provisions of Army Regulation, paragraph 14-12c (1).  She completed 11 months and 13 days of active service that was characterized as under other than honorable conditions.  She had 40 days time lost.  Her DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 31 October 2006 shows the authority as Army Regulation 635-200, paragraph 14-12c(1); the narrative reason as "Misconduct - AWOL" (separation designator code (SPD) JKD);  and the RE code 3.

14.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade her discharge, change the reason for her discharge, and change her RE code.  

	a.  On 25 August 2010, the ADRB, based on a records review, denied her request for upgrade.  

	b.  On 8 August 2011, the applicant appeared before the ADRB for a personal hearing.  In ADRB Case Number 20090017243, the ADRB determined the characterization of service was too harsh based on the circumstances (health and financial issues with primary childcare provider) surrounding her misconduct and as a result was inequitable.  Accordingly the ADRB voted to upgrade the characterization of service to general, under honorable conditions.  The ADRB determined the reason for discharge was proper and equitable and voted not to change it.  The ADRB Case Report and Directive states:

(1)  The applicant contends her company commander offered her no assistance and she was wrongfully placed in AWOL status.  The available evidence shows she was counseled by the company commander as to the Army's policy for separation and on 1 May 2006, she requested administrative separation actions under chapter 6, Army Regulation 635-200, due to hardship.  In the meantime, the executive officer and the applicant's drill sergeant both talked to the applicant's mother, who confirmed her mother was willing to care for the applicant's son until the chapter process was completed.  Therefore, there was no reason for the applicant to go home immediately.  However, the appellant chose to absent herself from the unit before the administrative separation process was completed.

(2)  … the evidence of record shows that the command attempted to assist the applicant with her personal problems and process her request for administrative discharge due to hardship.  The applicant voluntarily chose to go AWOL on two occasions, rather than await the completion of the separation process.

	c.  She was reissued a DD Form 214 showing the characterization of her service as under honorable conditions (general).  The reissued DD Form 214 shows the authority as Army Regulation 635-200, paragraph 14-12c (1); the narrative reason as "Misconduct - AWOL"; and the RE code 3.
 	
	d.  ADRB Case Number 20090017243 is not filed on her official military personnel file (OMPF) in iPERMS (integrated Personnel Electronic Records Management System).

15.  She provided her mother's eviction papers, dated 6 July 2006.

16.  She provided an undated memorandum for record from her father, a Battalion Command Sergeant Major (CSM).  CSM S stated, in effect, his daughter's whole ordeal was due to no fault of her own.  Her family care plan failed due to her mother's inability to further care for her grandson as she initially agreed upon.  This left the applicant in a compromising position in trying to make the best decision affecting her son's welfare and safety.  She did not get the proper support from her command team while she was in AIT.  The support would have allowed her the necessary time to return home and secure her son so that she could return to finish her AIT requirement and move on to her permanent party station.  He believed she would still be in the service today, continuing her career in the Army.  She has been trying to rejoin the Army through several recruiters, but has been unsuccessful due mainly to her type of discharge.

17.  She provided an undated statement from KG.  KG stated, in effect, she had known the applicant for many years.  She had gone to the applicant's mother's home on several occasions to check on her son and what she saw was a sad situation.  On one occasion the applicant's son was trying to do his homework in the dark because the electricity had been turned off.

18.  She provided an undated, unsigned statement from LS2 LD, a second class petty officer serving the U.S. Navy.  He stated, in effect, that he had known the applicant for 4 years as a family friend.  He states the applicant is a natural leader, who also knows how to follow an order.  She recognizes the value of deferring to a superior and doesn't take a hit to her pride when she is no longer in charge of something.  She is a friendly, easy-going woman who understands the value of a hard day's work.  She knows the importance of keeping the military running smoothly.  He believed strongly in her potential for success in the Army.

19.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) prescribes eligibility criteria governing the enlistment of persons, with or without prior service into the Regular Army. 

	 a.  Paragraph 3-19a (2) (c) states that depending on the needs of the Army, waivers may or may not be considered even if the disqualification could be waived.  In these cases, applicants should be informed to contact recruiters periodically so see if waiver applications are being considered.
	 b.  Table 3-1 (U.S. Army reentry eligibility codes) shows that the RE code 3 applies to a person who is not considered fully qualified for reentry or continuous service at the time of separation.

	 c.  Paragraph 4-14 states any applicant who, during their last period of service, was AWOL or had lost time of 6 days or more except those who were otherwise fully eligible to re-enlist at separation, as indicated by their RE and SPD codes, is required to have a waiver for enlistment.  The Commanding General, U.S. Army Recruiting Command is the approval authority.

20.  Army Regulation 635-200 sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.

	 a.  Paragraph 5-8 (Involuntary separation due to parenthood) states Soldiers will be considered for involuntary separation when parental obligations interfere with fulfillment of military responsibilities. Specific reasons for separation because of parenthood include:

		 (1) Inability to perform prescribed duties satisfactorily.

		 (2) Repeated absenteeism.

		 (3) Repeated tardiness.

		 (4) Inability to participate in field training exercises or perform special duties such as CQ and staff duty noncommissioned officer (NCO).

		 (5) Non-availability for worldwide assignment or deployment according to the needs of the Army.

	 b.  Chapter 6 (Separation Because of Dependency or Hardship) states Soldiers on active duty may be discharged or released from active duty because of genuine dependency or hardship.  Paragraph 6-4 (Application of criteria) states separation from the service of Soldiers because of dependency 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.

		 (4) Separation from active military service of the Soldier is the only readily available means of eliminating or materially alleviating the dependency or hardship conditions.

	 c.  Paragraph 14-12c(1) states Soldiers are subject to separation for misconduct due commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual of Courts-Martial.  This includes an absentee returned to military control from a status of absent without leave or desertion may be separated for commission of a serious offense.

DISCUSSION AND CONCLUSIONS:

1.  She contends that while she was at AIT she was punished for not lying for the first sergeant, sexually propositioned, taunted, and harassed on a daily basis.  She contends that while at Fort Knox, she was being sexual harassed by one of the returnees and she was physically assaulted by one of the escorts.  However she provided no substantive evidence to support these contentions.

2.  The applicant contends she did not receive sufficient support from her chain of command.  However, the evidence obtained from her ADRB personal hearing in ADRB Case 20110007973 indicated her executive officer and drill sergeant had talked to her mother who indicated she was willing to care for her son until the chapter process was completed.  Her command attempted to help her with her personal problems and process her request for administrative discharge due to hardship.  However, she made the decision to go AWOL on two separate occasions rather than wait for the completion of the separation process.

3.  She now contends the reason for her discharge should be parenthood.  However, she was not discharged due to hardship or parenthood because she did not remain in a duty status long enough for the process to be completed.  Because of this, based on her two periods of AWOL, the reason for her discharge as misconduct - AWOL was appropriate.

4.  She contends her RE code 3 should be changed so she can reenlist in the Army.  She was not fully eligible for continuous service on the date of her separation due to her two periods of AWOL.  Therefore, the RE code 3 she was 

assigned is correct because she requires a waiver in order to reenlist in the Army.

5.  The applicant is advised that although her RE-3 code was properly assigned, this does not mean that she is totally disqualified from returning to military service.  The disqualification upon which the RE-3 code was based may be waived for enlistment purposes.  The applicant is advised that if she desires to enlist, she should contact a local recruiter who can best advise her on her eligibility for returning to military service.  These individuals can best advise a former service member as to the needs of the service at the time and may process enlistment waivers for the applicant’s RE code.

6.  She was properly discharged in accordance with regulations. The reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would have jeopardized her rights.  The ADRB upgraded the characterization of her discharge to general, under honorable conditions.

7.  Her 40 days of time lost show she did not meet the standards of acceptable conduct and performance of duty for Army personnel.  As such, there is no basis on which to further upgrade her discharge.

8.  In view of the above, there is insufficient substantive evidence to grant relief in this case.

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)                                         AR20140016265



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ABCMR Record of Proceedings (cont)                                         AR20140016265



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