IN THE CASE OF: BOARD DATE: 14 May 2021 DOCKET NUMBER: AR20210007681 APPLICANT REQUESTS: The applicant requests to change her narrative reason for separation to reflect "hardship" instead of "parenthood." APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) for period ending 21 June 2001 * Finger Lakes Developmental Disabilities Service Office, 9 October 2008 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states in 1999, when she entered basic training, she was a parent to a 3-year-old son for whom she had to temporarily relinquish her parental rights in order to fulfill her services. In 2000, she became pregnant shortly before she began her tour in Schweinfurt, Germany. Upon receiving the news that she was pregnant, she made the decision to remain a Soldier and continue on with her tour of duty. Shortly after the birth of her son, she was informed that he was born with Down syndrome and she decided to remain a Soldier and balance parenthood. Her second son began to have health struggles. There were several times that she had to leave her duty station to take him to the medical center for health complications associated with Down syndrome. When she became pregnant, she did not ask to be separated from service. She was not aware that the separation code would determine her eligibility for specific benefits such as a Department of Veterans Affairs (VA) loan. As it stands, she does not qualify for a VA loan under a parenthood discharge with the active duty service time that she completed. 3. On 25 August 1999, she enlisted in the Regular Army for a term of 4 years. In connection with her enlistment, she completed: a. A DD Form 1966 (Record of Military Processing), 19 August 1999, which shows she was single and had one dependent at the time of her enlistment. b. DA Form 3286-69 (Statement of Understanding for Persons having Dependents in the Custody of Another) shows the applicant had a child in the custody of the other parent or another adult by court order. She understood that if she regained custody of this child or if the child resided with her in lieu of the legal custodian she would be processed for involuntary separation for fraudulent entry unless she could show that the regaining custody was not contrary to the stated intent (e.g., death or incapacity of other parent or custodian). 4. After completing initial entry training, on 31 March 2000, she was assigned overseas in Germany in the military occupational specialty 77F (Petroleum Supply. 5. The record is void of a separation packet. Her record contains her DD Form 214, which shows on 21 June 2001, she was honorably discharged. She completed 9 months and 27 days of her 4-year contractual obligation. The form also shows: * Separation Authority: Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-8 * Separation Code: "JDG" * Reentry Code: 3 * Narrative Reason for Separation: Parenthood 6. The applicant provides a letter from the Finger Lakes Developmental Disabilities Service Office, 9 October 2008. The letter shows W_, born in 2000, presumably, the applicant's son, is diagnosed with Down syndrome with adaptive behavior deficits. 7. Her record shows she enlisted while she was single and with one dependent who she indicated was in the custody of another through court order. She was honorably discharged under AR 635-200, paragraph 5-8; however, her record is void of a separation packet and the circumstances surrounding her discharge are unavailable for review. She completed 9 months and 27 days of her 4-year contractual obligation. 8. AR 635-200, states in: a. Paragraph 1-16, when a Soldier’s conduct or performance becomes unacceptable, the commander will ensure that a responsible official formally notifies the Soldier of his/her deficiencies. At least one formal counseling session is required before separation proceedings may be initiated and there must be evidence that the Soldier’s deficiencies continued after initial formal counseling. b. Paragraph 5-8 (Involuntary Separation Due to Parenthood), Soldiers will be considered for involuntary separation when parental obligations interfere with fulfillment of military responsibilities. AR 600-20 (Personnel General – Army Command Policy), chapter 5 provides Soldier's responsibilities for care of family members as related to military responsibilities. An honorable or general, under honorable conditions discharge is appropriate under this paragraph. c. Paragraph 6-3, Soldiers may be discharged or released because of genuine dependency or hardship. Dependency exists when death or disability of a member of a Soldier's (or spouse's) immediate family causes that member to rely upon the Soldier for principal care or support. 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, parenthood of married Soldiers (paragraph 6-3b(1)) and sole parenthood (paragraph 6-3b(2)) are conditions under which separation may be granted. There must be unexpected circumstances beyond the Soldier's control. An example of unexpected circumstances beyond the soldier's control is the birth of a child with a serious birth defect requiring constant care. Inability to obtain an approved dependent care plan does not qualify the Soldier for separation under this provision. d. Paragraph 5-3, the separation of enlisted personnel is the prerogative of the Secretary of the Army and will be effected only by his authority. The discharge or release of any enlisted member of the Army for the convenience of the Government will be at the Secretary’s discretion and with the type of discharge as determined by him. 9. AR 600-20 (Personnel General – Army Command Policy), paragraph 5-5 (Family care plans) provided plans must be made to ensure family members are properly and adequately cared for when a Soldier is deployed on temporary duty or otherwise not available due to military requirements. Commanders were to conduct or arrange by a representative for Family Care Plan counseling and require a Family Care Plan be completed for, among other reasons, a pregnant soldier who has no spouse; is divorced, widowed, or separated; or is residing without her spouse or is married to another service member. a. DA Form 5305-R (Family Care Plan) is the means by which soldiers provide for the care of their family members when military duties prevent the soldier from doing so. Soldiers are responsible for implementing the Family Care Plan and thus ensuring the care of their family members. DA Form 5305-R will be completed and approved within 30 days for active duty Soldiers from the date of counseling. b. The unit commander may designate an authorized representative to conduct Family Care Plan counseling using DA Form 5304-R and to initial and sign the counseling form in the commander's behalf. The unit commander is the sole approving authority for DA Form 5305-R. This responsibility cannot be delegated. Enlisted soldiers will be counseled on voluntary and involuntary separation whenever parenthood interferes with military responsibilities under provision of AR 635-200 for active duty Soldiers. 10. AR 608-75 (Personal Affairs – Exceptional Family Member Program (EFMP)), provides the EFMP, working in concert with other military and civilian agencies, is designed to provide a comprehensive, coordinated, multi-agency approach for community support, housing, medical, educational and personnel services to Families with special needs. The special education and medical needs of EFMP Family Members should be considered during the assignment process and Soldiers may be reassigned when readiness does not require a specific reassignment, to an area where the needs can be accommodated. Soldiers may request for deletion, deferment, or compassionate reassignment. Requests must be processed under AR 614-200 (Assignments, Details, and Transfers ––Enlisted Assignments and Utilization Management). Participation in the EFMP is not the basis for deletion, deferment, or compassionate reassignment. 11. AR 635-5-1 (Personnel Separations – Separation Program Designators), provides SPD Code "JDG" is designated as the code for Authority: AR 635-200, chapter 5-8 and Reason: "Parenthood" and "KDB" for Authority: AR 635-200, paragraph 6-3a or b, and Reason: "Hardship" 12. The Department of Veterans Affairs website shows enlisted Soldiers who served after 7 September 1980 or between 2 August 1990 and the present (Gulf War) are eligible for a VA-direct or VA-backed loan if they served at least 181 days (90 days for service between 2 August 1990 – Present) and he/she was discharged for a hardship, a reduction in force, or for convenience of the Government. 13. In reaching its determination, the Board can consider the applicant's petition and her service record in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, and evidence in the records. The Board considered the applicant's statement, her record of service, and the reason for her separation. The Board found the fact that the applicant had a child with Down syndrome represented a hardship as defined by regulation. Based on a preponderance of evidence, the Board determined the applicant's record should be corrected to show she was discharged due to hardship. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :XX :XX :XX GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending her DD Form 214 to show in: * Item 25 – AR 635-200, paragraph 6-3b * Item 26 – KDB * Item 28 – Hardship 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 635-200 sets forth the basic authority for the separation of enlisted personnel from the Army. a. Paragraph 1-16 provides: (1) When a Soldier’s conduct or performance becomes unacceptable, the commander will ensure that a responsible official formally notifies the Soldier of his/her deficiencies. At least one formal counseling session is required before separation proceedings may be initiated and there must be evidence that the Soldier’s deficiencies continued after initial formal counseling. (2) For Soldiers not in training status will be locally reassigned at least once, with a minimum of three months of duty in each unit. Reassignment should be between battalion-sized units or higher when considered necessary by the local commander. Permanent Change of Station funds normally will not be used for rehabilitative transfers. However, in meritorious cases where it is determined that a Soldier with potential to be a distinct asset to the Army would benefit from a change in commanders, associates, and living conditions, the commander exercising general court-martial jurisdiction may authorize PCS transfer within the same command. As an alternative, a request for reassignment to another command may be submitted to Headquarters, Department of the Army. (3) Waiver of counseling requirement is not authorized. The separation authority may waive the transfer requirements in circumstances where common sense and sound judgement indicate that such transfer will serve no useful purpose or produce a quality Soldier. b. Paragraph 5-8 (Involuntary Separation Due to Parenthood) provides Soldiers will be considered for involuntary separation when parental obligations interfere with fulfillment of military responsibilities. AR 600-20 (Personnel General – Army Command Policy), chapter 5 provides Soldier's responsibilities for care of family members as related to military responsibilities.) (1) Specific reasons for separation because of parenthood include: * Inability to perform prescribed duties satisfactorily * Repeated absenteeism * Repeated tardiness * Inability to participate in field training exercises or perform special duties such as charge of quarters and staff duty noncommissioned officer * Nonavailability for worldwide assignment or deployment according to the needs of the Army (2) Separation processing may not be initiated under this paragraph until the Soldier has been adequately counseled concerning deficiencies and has been afforded the opportunity to overcome them in accordance AR 635-200 paragraph 1-16 and AR 600-20 (Personnel General – Army Command Policy). Soldiers may be separated with an honorable or general, under honorable conditions under this paragraph. c. Chapter 6 (Separation because of dependency or hardship), paragraph 6-3, states separation under this chapter is for the convenience of the Government. It provides Soldiers of the Active Army and the Reserve Components may be discharged or released because of genuine dependency or hardship. (1) Paragraph 6-3a states dependency exists when death or disability of a member of a Soldier's (or spouse's) immediate family causes that member to rely upon the Soldier for principal care or support. (2) Paragraph 6-3b states 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, parenthood of married Soldiers (paragraph 6-3(1)) and sole parenthood (paragraph 6-3(2)) are conditions under which separation may be granted. A married Soldier who becomes a parent by birth, adoption, or marriage (stepparent) and whose child (or children) is less than 18 years of age and resides within the household, may apply for separation under hardship. The Soldier must submit evidence that the roles of parent and Soldier are incompatible and that the Soldier cannot fulfill his or her military obligation without neglecting the child or children. There must be unexpected circumstances beyond the Soldier's control. An example of unexpected circumstances beyond the soldier's control is the birth of a child with a serious birth defect requiring constant care. Inability to obtain an approved dependent care plan does not qualify the Soldier for separation under this provision. d. Paragraph 5-3 states, in pertinent part, that the separation of enlisted personnel is the prerogative of the Secretary of the Army and will be effected only by his authority. Except as delegated by these regulations or by special Department of the Army directives, the discharge or release of any enlisted member of the Army for the convenience of the Government will be at the Secretary’s discretion and with the type of discharge as determined by him. Such authority may be given either in an individual case or by an order applicable to all cases specified in such orders. 3. AR 600-20, in effect at the time, prescribed the policies and responsibilities of command, which included military discipline and conduct, and the Army Equal Opportunity Program. Paragraph 5-5 (Family care plans) provided plans must be made to ensure family members are properly and adequately cared for when a Soldier is deployed on temporary duty or otherwise not available due to military requirements. a. Commanders were to conduct or arrange by a representative for Family Care Plan counseling and require a Family Care Plan be completed for: (1) A pregnant soldier who has no spouse; is divorced, widowed, or separated; or is residing without her spouse or is married to another service member. (2) A soldier who has no spouse; is divorced, widowed or separated, or is residing apart from his or her spouse; who has joint or full legal and physical custody of one or more family members under the age of 19 or who has adult family member(s) incapable of self-care regardless of age. (3). A soldier who is divorced (not remarried) and who has liberal or extended visitation rights by court decree which would allow family members to be solely in the soldier's care in excess of 30 consecutive days. (4). A soldier whose spouse is incapable of self-care or is otherwise physically, mentally, or emotionally disabled so as to require special care or assistance. (5) A soldier categorized as half of a dual-military couple of the Active Army or Reserve Component of any service who has joint or full legal custody of one or more family members under age 19 or who has adult family member(s) incapable of self-care regardless of age. b. DA Form 5305-R (Family Care Plan) is the means by which Soldiers provide for the care of their family members when military duties prevent the Soldier from doing so. Soldiers are responsible for implementing the Family Care Plan and thus ensuring the care of their family members. DA Form 5305-R will be completed and approved within 30 days for active duty Soldiers from the date of counseling. c. The unit commander may designate an authorized representative to conduct Family Care Plan counseling using DA Form 5304-R and to initial and sign the counseling form in the commander's behalf. The unit commander is the sole approving authority for DA Form 5305-R. This responsibility will not be delegated. The commander will give the soldier 30 days from date of the first disapproval to submit additional documentation or evidence to support the Family Care Plan. He or she may consider extenuating circumstances in approving DA Form 5305-R, but must understand that the soldier is considered non-deployable until a Family Care Plan is validated and approved. The commander should consider initiating a bar to reenlistment and/or involuntary separation proceedings against soldiers who fail to properly manage personal, marital, or family affairs, or who fail to provide or maintain adequate Family Care Plans. d. Enlisted soldiers will be counseled on voluntary and involuntary separation whenever parenthood interferes with military responsibilities under provision of AR 635- 200 for active duty Soldiers. 4. AR 608-75 (Personal Affairs – Exceptional Family Member Program), in effect at the time, establishes policies, responsibilities, and procedures for the Exceptional Family Member Program (EFMP). The EFMP, working in concert with other military and civilian agencies, is designed to provide a comprehensive, coordinated, multi-agency approach for community support, housing, medical, educational and personnel services to Families with special needs. It provides a. Soldiers with exceptional Family Members will enroll in the EFMP. Participants in the EFMP are enrolled permanently in the program unless medical or special education needs warrant case closure or the soldier is separated from the Army. Soldiers are responsible for keeping the medical and/or special education needs documentation current as EFM condition changes or at least every 3 years whichever comes first. b. The program is to consider the medical needs of the EFM during the continental United States (CONUS) and outside the continental United States (OCONUS) assignment process. To consider the special education needs of the EFM during the OCONUS assignment process (excludes Alaska and Hawaii). To assign Soldiers to an area where the EFM's medical and special education needs can be accommodated, provided there is a valid personnel requirement for the Soldier's grade and specialty. Soldiers may request for deletion, deferment, or compassionate reassignment. Requests must be processed under AR 614-200 (Assignments, Details, and Transfers – –Enlisted Assignments and Utilization Management). Participation in the EFMP is not the basis for deletion, deferment, or compassionate reassignment. 5. AR 635-5-1 (Personnel Separations – Separation Program Designators (SPD)), in effect at the time, prescribed the specific authorities (regulatory, statutory, or other directives) and reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It provides separation program designator: * "JDG" for Authority: AR 635-200, paragraph 5-8, and Reason: "Parenthood" * "KDB" for Authority: AR 635-200, paragraph 6-3a or b, and Reason: "Hardship" * "KDG" for Authority: AR 635-200, paragraph 6-3b (1) or (2), and Reason: "Parenthood" * "JFF" for Authority: AR 635-200, paragraph 5-3, and Reason (involuntary discharge): Secretarial Authority 6. The Department of Veterans Affairs Website at https://www.va.gov/housing- assistance/home-loans/eligibility/ shows enlisted Soldiers who served after 7 September 1980 or between 2 August 1990 and the present (Gulf War) are eligible for a VA-direct or VA-backed loan if they met the following criteria: * 24 continuous months, or * The full period, at least 181 days (90 days for service between 2 August 1990 – Present) for which he/she was called to active duty, or * At least 181 days (90 days for 2 August 1990 – Present) if he/she was discharged for a hardship, a reduction in force, or for convenience of the government, or * Less than 181 days (90 days for 2 August 1990 – Present) if he/she was discharged for a service-connected disability 7. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210007681 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20210007681 7 ABCMR Record of Proceedings (cont) AR20210007681 6