MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            11 May 2000
	DOCKET NUMBER:   AR1999033661

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

	Mr. Carl W. S. Chun		Director	
	Mr. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. James M. Alward		Member	
	Mr. Christopher J. Prosser		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

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

APPLICANT REQUESTS:  In effect, that her reentry (RE) code be changed in order for her to be eligible to receive benefits under the Montgomery G.I. Bill.

APPLICANT STATES:  In effect, that she fully paid into the program and she was not discharged for misconduct or any other derogatory reason.  She claims that she was a mother with no family or friends to help her where she was stationed and this was the reason she was unable to complete her full term.  She concludes by indicating that she would like to use her education benefits before the 10 year time limit expires.

EVIDENCE OF RECORD:  The applicant's military records show:

On 4 September 1991, she enlisted in the Regular Army for 4 years.  She successfully completed basic training at Fort Jackson, South Carolina and advanced individual training (AIT) at Fort Lee, Virginia.  Upon completion of AIT she was awarded military occupational specialty 76C (Equipment Records and Parts Specialist) and she was assigned to Fort Campbell, Kentucky for her first permanent duty station.

The applicant’s service record shows that the highest rank she attained while on active duty was private first class/E-3 and there are no documented acts of valor, significant achievement, or service warranting special recognition on file.  In addition, the record is void of any disciplinary history and contains no record of the applicant ever having received a court-martial or nonjudicial punishment.

In June of 1993 the applicant gave birth to a daughter.  On 4 August 1993 the applicant was counseled by her unit commander and completed a Department of the Army (DA) 5304-R (Family Care Plan Counseling Checklist).  At this time she completed a formal counseling statement in which she indicated that because she had no family or friends close by she felt she could not fulfill her obligations as both a soldier and a parent and requested to be discharged.  

On 19 August 1993, the applicant’s unit commander initiated a bar to reenlistment action based on the applicant’s failure to manage her personal and family affairs based on her failure to respond to duty requirements because of parenthood.  On 24 August 1993, the applicant received mandatory veterans education benefits counseling from an education counselor based on her potential to be separated by reason of parenthood.  On 30 August 1993, the bar to reenlistment was approved by the appropriate authority.

On 4 October 1993 and 12 October 1993 the applicant was formally counseled by her unit commander based on her refusal to complete a family care plan.  These sessions addressed her failure to initiate any action in the 60 days subsequent to her August declaration that she wanted to be discharged.  
In the 12 October session, she was specifically advised that she would be given an additional 6 days to complete her family care plan and if she failed to do so she would be processed for an involuntary separation, under the provisions of paragraph 5-8 of Army Regulation 635-200, by reason of parenthood. 

On 28 October 1993, the applicant’s unit commander notified the applicant of the intent to initiate separation action on her, under the provisions of paragraph 5-8, Army Regulation 635-200.  The unit commander cited the applicant’s failure to establish a family care plan as the reason for taking the action and indicated that he would recommend that her service be characterized as honorable.

On 3 November 1993, the applicant acknowledged that she was notified of the separation action and consulted legal counsel.  After being advised by counsel of the basis for the contemplated separation action and its effects, she completed her election of rights.  At this time she elected not to submit a statement of rebuttal to the separation action.  

On 5 November 1993, the unit commander requested the applicant’s separation with an honorable characterization of service and on 9 November 1993, the appropriate authority approved the separation action and directed that she be honorably released from active duty (REFRAD) and transferred to Individual Ready Reserve (IRR).

Accordingly, on 23 November 1993, the applicant was REFRAD.  On the date of her separation she was issued and signed a DD Form 214 (Certificate of Release or Discharge From Active Duty).  This document showed that the authority for her separation was paragraph 5-8, Army Regulation 635-200; that the narrative reason for her separation was parenthood; that she was assigned a separation program designator (SPD) code of LDG; and that she given an RE code of 3.  At the time of her REFRAD the applicant had completed 2 years, 2 months, and 
20 days of active duty on her 4 year enlistment.

Army Regulation 600-20 (Army Command Policy) prescribes the policies and responsibilities of command.  Paragraph 5-5 covers Family Care Plans and states, in pertinent part, that soldiers are responsible for implementing the Family Care Plan and thus ensuring the care of their family members.  It also states, in pertinent part, that commander’s should consider initiating a bar to reenlistment against soldiers who fail to properly manage personal, marital, or family affairs, or who fail to provide or maintain adequate Family Care Plans.  In addition, it indicates that commanders should consider initiating involuntary separation proceedings against soldiers who fail to provide and maintain adequate Family Care Plans. 

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 5 outlines the criteria for the separation of soldiers for the convenience of the government.  Paragraph 5-8 establishes the policy for the involuntary separation of soldiers due to parenthood.  It states, in pertinent part, 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 and it specifies that action should be taken if soldier’s fail to meet their responsibilities for the care of family members as related to military responsibilities. 

AR 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  The SPD code of LDG was the appropriate code for the applicant based on the guidance provided in AR 635-5-1 for soldiers being involuntarily separated, under the provisions of paragraph 5-8, Army Regulation 635-200, for parenthood.  Additionally, Table 
2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5 (Separation Documents) establishes RE Code 3 as the proper reentry code to assign to soldiers separated for this reason.

Title 38 of the United States Code, chapter 30, governs veterans educational benefits.  It states, in pertinent part, that education benefits under the Montgomery G.I. Bill (MGIB) are based on initial entry to active duty; that payroll reductions for the MGIB are non-refundable; and that there is a minimum time in service requirement to obtain eligibility for the MGIB.  The law establishes a 20/30 rule for soldiers separating for the convenience of the government (COG).  This means that in order to be eligible for education benefits under the MGIB a soldier separating for the COG must complete at least 20 months of a two year enlistment and 30 months of a three year enlistment.  Although the reason for a soldier’s separation is Army policy, the 20/30 month rule is a matter of law.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  After carefully examining the evidence of record the Board concluded, in view of the circumstances in this case, that the assigned RE code was and still is appropriate based on the reason and authority for the applicant’s separation.  Therefore, the Board determined that a change to the RE code of 3 assigned the applicant at separation is not warranted.

2.  The record shows that the applicant completed only 26 months and 20 days of her 4 year enlistment; thus, she did not meet the time in service requirement necessary to qualify for benefits under the MGIB.  The law governing veteran’s education benefits establishes, in order to qualify to receive benefits under the MGIB, that a member separating from the service for the COG must complete at least 30 months of a 3 or more year enlistment.  Therefore, by law, there is no basis to grant the applicant entitlement to MGIB education benefits.  

3.  The evidence of record clearly establishes that the applicant was afforded every reasonable opportunity to establish a family care plan and that she failed to do so prior to her being processed for an involuntary separation for parenthood.  In addition, it is obvious that the applicant was referred to and properly counseled by an education counselor in regard to the impact her separation for parenthood would have on her eligibility to receive benefits under the MGIB.  The Board is satisfied that the rights of the applicant were fully protected throughout the separation process and concluded that there is no equity basis for granting the applicant the relief she requested. 

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___cjp___  ___ja ___  ___rvo __  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999033661	
SUFFIX		
RECON		
DATE BOARDED	2000/05/11	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1993/11/23	
DISCHARGE AUTHORITY	AR 635-200 C5	
DISCHARGE REASON	Parenthood	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 189	110.0000	
2.		
3.		
4.		
5.		
6.