IN THE CASE OF: 

		BOARD DATE: 18 June 2015

		DOCKET NUMBER:  AR20140019673 


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 his general, under honorable conditions discharge to honorable.

2.  The applicant states he would not complete a child care plan for his son so that he could be deployable.  He did not want to give up custody of his son after a divorce and go on a military deployment.  He argues that he is deserving of an honorable discharge because he served on active duty for almost 13 years.  He had multiple reenlistments, achievements and awards.  He chose to get out of the Army because he felt it was best for his son to be with his father full time.

3.  The applicant provides copies of:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 1059 (Service School Academic Evaluation Report), dated         8 September 1989
* Letter of Notification, dated 10 March 1992, with enclosure
* DA Form 2166-7 (Noncommissioned Officer (NCO) Evaluation Report) ending in October 1995
* DA Form 2166-7, ending in March 1996
* Letter of support, dated 26 July 2014
* Letter of Support, dated 14 August 2014
* Letter of Support, undated
* Letter of Support, undated
* Memorandum of support, undated

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 20 July 1983, the applicant enlisted in the Regular Army for a 3-year period.  He was honorably discharged for the purpose of an immediate reenlistment on 24 January 1986 for a 6-year period.  On 3 October 1991, he immediately reenlisted for another 6-year period, giving him an expiration term of service (ETS) of 2 October 1997.

3.  On or about 9 April 1996, the applicant's commander notified the applicant that he was initiating action to separate him from the military under the provisions of Army Regulation 635-200, paragraph 5-8, due to parenthood.  The commander stated his reasons for this action were the applicant's inability to perform prescribed duties and his unavailability for worldwide assignment or deployment.  The commander also informed him that he was recommending that he receive an honorable characterization of service.  The applicant acknowledged this notification on 9 April 1996.

4.  On 9 April 1996, the applicant's commander recommended he be separated from the military service prior to his ETS for the same reasons as discussed in the previous paragraph.

5.  On or about 12 April 1996, the applicant consulted with legal counsel.  He requested consideration of his case by an administrative separation board and to appear before such board.  He elected not to submit a statement in his own behalf, but did want to be represented by counsel.

6.  On 18 April 1996, the appropriate authority approved the recommendation for discharge and directed that he be issued a General Discharge Certificate.  He further recommended that the applicant be transferred to the Individual Ready Reserve.

7.  On 26 April 1996, the applicant was accordingly discharged.  He completed a total of 12 years, 9 months, and 7 days of creditable active duty service.  His 
DD Form 214 shows in:

	a.  block 12a (Date Entered Active Duty this Period): 19830720;

	b.  block 12b (Separation Date this Period): 19960426;
	
	c.  block 18 (Remarks): Immediate reenlistments this period - 19830720-19860123 and 19860124-19911002;

	d.  block 24 (Character of Service): Under Honorable Conditions (General);

	e.  block 25 (Separation Authority): Army Regulation 635-200, paragraph 
5-8; and

	f.  block 28 (Narrative Reason for Separation): Parenthood.

8.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

9.  Army Regulation 635-200 sets forth the policy and prescribes the procedures for administrative separation of enlisted personnel.

	a.  Chapter 5, in effect at that time, applied to separations for convenience of the government.

	b.  Paragraph 5-1 provided that unless the reason for separation requires a specific characterization, a Soldier being separated for the convenience of the government will be awarded an honorable, or an under honorable conditions characterization of service.

	c.  Paragraph 5-8 provided for the involuntary separation due to parenthood.  Soldiers were considered for involuntary separation when parental obligations interred with the fulfillment of military responsibilities.  Specific reasons for separation due to parenthood included inability to perform prescribed duties satisfactorily, repeated absenteeism, late for work, inability to participate in field training exercises or perform special duties such as charge of quarters and staff duty NCO, and unavailability for worldwide assignment or deployment according to the needs of the Army.

	d.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	e.  Paragraph 3-7b, provides that 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

10.  Army Regulation 635-5 (Separation Documents), as in effect several years after the applicant's discharge, provided that Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except "Honorable," enter "continuous honorable active duty service from (first day of service which DD Form 214 was not issued) until (date before commencement of current enlistment)."  Then, enter the specific periods of reenlistments.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his general, under honorable conditions discharge should be upgraded to honorable because he is deserving of an honorable discharge based on almost 13 years of active duty service.  He also argues that because he was a single parent, he determined it was best for his son if he got out of the Army.

2.  The applicant admitted that he would not complete a child care plan for his son so that he could be deployable.  This willful act resulted in applicant's inability to perform prescribed duties and made him unavailable for worldwide assignment or deployment.  Accordingly, the commander had to initiate action to separate him.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

4.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

5.  There is no evidence showing that what the Army did was in error or unjust.  Therefore, his request should be denied.

6.  However, based on a change to the governing regulation a few years after the applicant's discharge, it would be appropriate to make an administrative correction in the Remarks block of his DD Form 214 by showing his earlier periods of honorable service.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  ___X___ _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board determined that administrative correction to the DD Form 214 of the individual is appropriate.  Therefore, the Board requests that the ARBA CMD administratively correct the records of the individual concerned to add in the Remarks block of his DD Form 214: "Continuous Honorable Active Duty Service from 19830720 until 19911002."




      ____________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)                                         AR20130011369



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ABCMR Record of Proceedings (cont)                                         AR20140019673



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