PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:            24 May 2000
	DOCKET NUMBER:   AR1999027455

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Hubert S. Shaw, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Mark D. Manning		Member	
	Ms. Meta Waller		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, reconsideration of her previous application to the Army Board for Correction of Military Records (ABCMR) to change her narrative reason for discharge so that she can qualify for Montgomery GI Bill educational benefits.

3.  On 16 July 1997, the ABCMR denied the applicant’s original request (AC97-08172) to change the narrative reason for her discharge shown on her DD Form 214 (Certificate of Release or Discharge from Active Duty) to hardship.

4.  The applicant states, in effect, in a 4 June 1999 letter to the Secretary of Defense that she was discharged under the provision of Army regulation which governed hardship discharges and that she was advised at the time of her separation that she would receive her “Chapter 30” benefits.  However, the applicant states that the Department of Veterans Affairs (DVA) has denied her education benefits under “Chapter 30” because she was discharged for the “Convenience of the Government”, not for hardship.  

5.  On 24 June 1999, the Director of the ABCMR notified the applicant that her military personnel files would be obtained in order to accomplish a review of the information stated in her 4 June 1999 letter to the Secretary of Defense.  Upon receipt of the applicant’s records, a review was conducted which revealed that she had submitted no new evidence.  However, new information has been discovered which indicates the DVA will grant benefits in cases where the discharge document has been annotated to show that discharge was effected under the authority of Section 1173, Title 10, United States Code for hardship.

6.  Because this case was reopened based on new information, which was not provided by the applicant, the ABCMR will consider this case “De Novo”.

7.  The applicant’s military records show that she enlisted for five years and entered active duty on 17 March 1992.  She completed training in a military police specialty.

8.  The applicant’s records contain a DA Form 4187 (Personnel Action) in which the applicant requested discharge from the Army under the provisions of paragraph 6-3b(1) of Army Regulation 635-200 for parenthood.  In her request, she stated that her “roles as a soldier and a parent have become incompatible” and that she “is unable to fulfill [her] military obligations without neglecting the welfare of [her] child.”  With this request for personnel action, she submitted the statements and evidence required by regulation.

9.  The applicant’s company commander recommended approval of the applicant’s request for discharge on 22 April 1994.  The intermediate commander recommended approval and forwarded the request to the approval authority on 25 April 1994.
10.  On 28 April 1994 the applicant’s request for discharge was approved.  The implementing document specifically states:  “1.  Request for hardship discharge IAW AR 635-200, chapter 6, paragraphs 1-21c and 6-3b is approved.”  As a result, she was released from active duty on 13 May 1994 with an honorable character of service.  Item 25 of her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the separation authority as “AR 635-200, PARA 6-3b(1)”.  Item 26 shows her separation code as “MDG” [voluntary release for parenthood] and item 28 shows the narrative reason for her discharge as “PARENTHOOD”.

11.  The Education Incentives Branch of the U.S. Total Army Personnel Command notified the applicant by letters dated 5 February 1996 and 4 March 1996 that “Individuals who serve in the Armed Forces and are discharged or released from active duty for a service connected disability, hardship or pre-existing medical condition will receive one month of benefits for each month of active duty served.”  Each letter also stated that separation for “parenthood or the custody of minor children is a separation for the convenience of the Government.” 

12.  Chapter 6 of Army Regulation 635-200 governs the separation of enlisted personnel based on dependency or hardship.  Paragraph 6-1 of Chapter 6 states:  “Separation under this chapter is for the convenience of the Government.”

13.  Paragraph 6-3 of Army Regulation 635-200 states that soldiers of the Active Army and the Reserve Components may be discharged or released because of genuine dependency or hardship.  The regulation provides that hardship exists when, in circumstances not involving death or disability of a member of a 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.  Under this provision for hardship discharge, the regulation lists two situations for which separation may be granted:  1) parenthood of married service women and 2) sole parenthood.

14.  Paragraph 6-3b(1) of Army Regulation 635-200 provides that a married service woman may apply for separation under hardship when she becomes a parent by birth, adoption, or marriage (stepparent) and her child (or children) under 18 years of age reside within the household.  The regulation requires that the woman must submit evidence that the roles of parent and soldier are incompatible and that she cannot fulfill her military obligation without neglecting the child or children.

15. Army Regulation 635-5-1 prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation shows that the separation program designator “MDG” as shown on the applicant’s DD Form 214 specifies the narrative reason for discharge as “Parenthood” and that the authority for discharge under this separation program designator is “AR 635-200, para 6-3b(1) or (2)”.

16.  The Education Incentives Branch of the U.S. Total Army Personnel Command has published information on policy and law relating to early separation for the convenience of the Government.  The policy is that certain narrative reasons for separation describe something other than convenience of the Government, but, in fact, are separations for the convenience of the Government.  The most common paragraphs in Army Regulation 635-200, which fall into this category, are 5-3 (usually convenience of the Government), 5-4 (surviving family members), 5-8 and 6-3b(1) or (2) (Parenthood), 5-17 (Early Separation to Further Education), Chapter 8 (Pregnancy), paragraph 16-2 (ROTC) and 16-12 (Holiday Early Transition Program).  The Education Incentive Branch has also determined that separation for parenthood is not considered hardship for MGIB purposes, but is a convenience of the Government separation as is stated in Army Regulation 635-200, paragraph 6-1.  However, the Education Branch has also stated in its publications that the transition of parenthood from a hardship category to a convenience of the Government category occurred on 1 October 1993. 

17.  Section 1411 (Chapter 30), Title 38, United States Code governs all aspects of the Montgomery GI Bill.  The law states that eligibility for enrollment in the Montgomery GI Bill requires that a soldier enter active duty for the first time after 30 June 1985.  The same law requires soldiers to complete their initial term of service in order to obtain Montgomery GI Bill educational benefits, but the law also provides for exceptions to this eligibility requirement which include individuals who serve in the Armed Forces and are discharged or released from active duty, prior to completion of their first enlistment, for service connected disability, hardship or a pre-existing medical condition.  Normally, soldiers discharged under these conditions receive one month of benefits for each month of active duty served.  However, determination of eligibility for DVA benefits rests with that agency operating under the applicable provisions of Title 38 United States Code and their own rules and regulations.  The Services are precluded from making determinations of eligibility Montgomery GI Bill benefits.

18.  Section 1173, Title 10, United States Code is the law pertaining to discharge of enlisted members for hardship.  The law states:  “Under regulations prescribed by the Secretary concerned, a regular enlisted member of an armed force who has dependents may be discharged for hardship.”

CONCLUSIONS:

1.  Evidence of record shows that the discharge for parenthood fell under the category of a hardship discharge until 1 October 1993 when it became a discharge for the convenience of the Government.  The Board notes that this transition occurred just prior to the applicant’s discharge.

2.  Records show that the applicant requested discharge under the provisions of Army Regulation 635-200, paragraph 6-3b(1) for hardship based on parenthood of a married service woman.  The applicant’s discharge processing papers show that her request for a “hardship discharge” was approved.

3.  The statute governing the Montgomery GI Bill provides that individuals, who served in the Armed Forces and are discharged or released from active duty for service connected disability, hardship or a pre-existing medical condition, may receive one month of benefits for each month of active duty served. 

4.  Notwithstanding paragraph 6-1 of Army Regulation 635-200 which states that separation for hardship and dependency is for the convenience of the Government, it is clear that the intent of Chapter 6 of Army Regulation 635-200 and Section 1173, Title 10, United States Code has been to provide for discharge based on hardship in certain cases involving parenthood of married service women and sole parenthood.

5.  Based on the foregoing, the Board finds that the applicant was separated from the Service due to genuine hardship because the roles of parent and soldier were incompatible and she could not fulfill her military obligation without neglecting her child.  In view of the fact that the applicant was separated under a provision of regulation which fell under the overall category of hardship during most of her service, the Board concludes in this specific case that it is unjust for her to be denied Montgomery GI Bill educational benefits because the narrative reason for separation on her discharge document is “PARENTHOOD” instead of “HARDSHIP”.

6.  As a result of the preceding finding, the Board has determined that the applicant’s DD Form 214 should be amended, as an exception to regulation, to show that her discharge under the provisions of Army Regulation 635-200, Paragraph 6-3b(1) for parenthood is a hardship discharge under Section 1173, Title 10, United States Code.  

7.  The Board wants the applicant to note that its decision in this case does not grant veterans’ benefits or eligibility for those benefits.  The authority to determine eligibility for Montgomery GI Bill benefits rests with the DVA.

8.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that the discharge of the individual concerned for parenthood is a hardship discharge under the provisions of Section 1173, Title 10, United States Code.

BOARD VOTE:  

________  ________  ________  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999027455	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000524	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19940513	
DISCHARGE AUTHORITY	AR 635-200, PARA 6-3b(1). . . . .  	
DISCHARGE REASON	PARENTHOOD 	
BOARD DECISION	GRANT	
REVIEW AUTHORITY	MR CHUN	
ISSUES         1.	103.0100	
2.		
3.		
4.		
5.		
6.