PROCEEDINGS

	IN THE CASE OF:   

	BOARD DATE:           24 May 2000         
	DOCKET NUMBER:   AR2000035725

	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. Richard H. Allen		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 essence, the addition of the wording “USC (United States Code) 1173” to line 28 (Reason for Discharge) on his DD Form 214 (Certificate of Release or Discharge from Active Duty).  

3.  The applicant states that he was told by an individual at the “US Dept of Veterans Affairs” that he needed code “USC 1173” added to line 28 on his DD Form 214, Hardship.  He submits a letter from the Department of Veteran Affairs (DVA), undated, denying him a home owners’ loan guarantee.  

4.  The applicant’s military records show that he enlisted in the Regular Army on 23 September 1986 for 4 years.  He was trained in military occupational specialty (MOS) 77W (Water Treatment Specialist).  He was assigned to Fort Lee, Virginia.

5.  On 20 March 1987, he was approved for and was released from active duty under the provisions of paragraph 6-3b, chapter 6, Army Regulation (AR) 635-200, by reason of hardship.  He was married and he and his wife had a child.  His wife was injured in December 1986, and she was unable to care for herself and their 3-year old daughter.  A request for compassionate reassignment had been previously disapproved since the matter could not be resolved within 1 year.

6.  His DD Form 214, in item 12c (Net Active Service this Period) showed credit for 5 months and 18 days active service.  Item 23 showed that he was released from active duty and his characterization of service in item 24 of the form was shown as “Entry Level Status”, which essentially is an uncharacterized separation.  In item 25, the separation authority was shown as chapter 6, AR 635-200.  In item 27, the Separation Code (SPD) was shown as “MDB”.  In item 
28, the narrative reason for separation was shown as “Hardship,” with no further clarification.

7.  At the time of his release from active duty, he was transferred to the US Army Reserve (USAR), where he completed his 8-year statutory period of service and was honorably discharged on 30 September 1994.  

8.  On an unknown date, presumably sometime in 1998, the applicant was informed by the DVA that his request for Certificate of Eligibility for Loan Guaranty Benefits was disallowed.  The reason stated in item 2 of the DVA FL (Form Letter) 26-611 was:  “2.  You served less than the required number of days of active duty and it has been determined that you were not released or discharged because of service incurred disability, or you were not discharged under the specific authority of 10 U.S.C. 1173 (hardship) or 10 U.S.C. (early out).”  

9.  Chapter 6 of Army Regulation 635-200 governs the separation of enlisted personnel based on dependency or hardship.  Paragraph 6-1 of Chapter 6 of that regulation states:  “Separation under this chapter is for the convenience of the Government.”  In paragraph 6-3b, the regulation provides that a 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.  Immediate family members include the soldier’s spouse and children..

10.  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.”

11.  The Guide for Service Officers, Veterans of Foreign Wars of the United States, (VFW) shows that the DVA is authorized to guarantee a loan (amounts vary) to eligible veterans for the purchase of a home, condominium or manufactured home which is permanently situated on a lot and is considered real property.  A DD Form 214 must be submitted for verification of service.  Individuals who serve in the Armed Forces and are discharged for the convenience of the Government will receive their full benefit if they completed no less than 20 months on a 2-year enlistment and no less than 30 months on a 
3 or 4-year enlistment.  However soldiers discharged because of a hardship, is retired or discharged because of a disability or is later determined to have a service connected disability may be entitled to a determination of entitlement to DVA benefits.  Normally, a soldier who is discharged under these conditions receive 1 month’s benefits for each month served.  Determination of eligibility for DVA benefits rests with that agency, operating under the provisions of Title 38, United States Code and their own rules and regulations.  The military Services are precluded from making determinations of eligibility for such benefits.   

12.  Army Regulation 635-5, the regulation governing the preparation of the DD Form 214, specifies that item 28 of the DD Form 214 will state the reason for discharge as cited in Army Regulation 635-5-1, which specifies the SPD’s to be used and the specific reason for discharge.  In this case, SPD “MDB” specifies that the reason for discharge is to be shown as “Hardship” in item 28 of the DD Form 214.   

CONCLUSIONS:

1.  The applicant enlisted for 4 years but only completed 5 months and 18 days of that enlistment.

2.  Records show that the applicant requested discharge under the provisions of Army Regulation 635-200, paragraph 6-3b for hardship based on the serious illness of his wife and her inability to care for the family’s young child.   
3.  Army regulations governing the reason entered on the DD Form 214 specify that it will be based on the SPD.  In this case, SPD “MDB” is for “Hardship”.  While Section 1173, Title 10, United States Code, is the statutory authority for a hardship discharge, it is not normally shown on the DD Form 214.

4.  Based on the foregoing, the Board finds that the applicant was separated from the Service due to a genuine hardship because of the documented need to be able to care for his wife and child.  

5.  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 his discharge under the provisions of Army Regulation 635-200, Paragraph 6-3b was for hardship reasons which met the criteria specified in Section 1173, Title 10, United States Code.

6.  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 hardship was in accordance with the provisions of Section 1173, Title 10, United States Code.

BOARD VOTE:  

__jns____  __mdm__  __mw___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		      _John N. Slone__
		        CHAIRPERSON

INDEX

CASE ID	AR2000035725	
SUFFIX		
RECON		
DATE BOARDED	20000524	
TYPE OF DISCHARGE	UNCHAR	
DATE OF DISCHARGE	19870320	
DISCHARGE AUTHORITY	AR635-200 	
DISCHARGE REASON	A35.00	
BOARD DECISION	GRANT 	
REVIEW AUTHORITY	DASA	
ISSUES         1.	110.02	
2.	A01.08	
3.	A01.14.	
4.	A94.48	
5.		
6.