IN THE CASE OF: BOARD DATE: 25 August 2022 DOCKET NUMBER: AR20220001676 APPLICANT REQUESTS: correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 13 June 1989 to show in: * item 23 (Type of Separation) – Humanitarian (presumed to mean hardship) * item 28 (Narrative Reason for Separation) – Separation to Secure Proper Custody of Children APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552). FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) 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 that under the Department of Veterans Affairs (VA) 24 months of service rule, the humanitarian (presumed to mean hardship) language will allow her to receive VA benefits. She honestly was told her DD Form 214 narrative reason was okay until she applied for veterans' benefits. The VA stated her narrative reason for separation must be changed. 3. Her marriage certificate, 27 August 1983, shows her marriage to on that date. 4. Her DD Form 1966 (Record of Military Processing – Armed Forces of the United States), 17 February 1988, shows in: * item 2 (Name) – * item 10 (Marital Status) – Single (indicating she had never been married) * item 11 (Number of Dependents) – 0 (indicating she had no spouse or dependent children) * item 40 (Certification of Applicant) – her signature, certifying that – * the information given by her is in this document is true, complete, and correct to the best of her knowledge and belief * she understood that she is being accepted for enlistment based on the information provided by her in this document * that if any of the information is knowingly false or incorrect, she could be tried in a civilian or military court and could receive a less than honorable discharge which could affect her future employment opportunities 5. Her DD Form 398-2 (Department of Defense Personnel Security Questionnaire), 17 February 1988, indicated not applicable for spouse. Her signature certified that the entries made by her were true, complete, and accurate to the best of her knowledge and belief and were made in good faith. She understood that a knowing and willful false statement on this form can be punished by fine or imprisonment, or both. 6. She enlisted in the U.S. Army Reserve on 17 February 1988 for a period of 8 years under the name under the Delayed Entry/Enlistment Program with a commitment to enlist in the Regular Army on 1 March 1988. She was discharged from the Delayed Entry/Enlistment Program for immediate enlistment in the Regular Army for a period of 4 years effective 1 March 1988. 7. The U.S. Army Training Center and Fort Dix endorsement (Change of Name (Applicant)), 28 April 1988, approved her request to change her name from 8. The DA Form 4856 (General Counseling Form), 18 April 1989, shows she received counseling for being absent from the physical training (PT) accountability formation at 0615 hours on 18 April 1989. She acknowledged having been counseled and stated, in part: "I know that PT is a requirement of the Army and that there is a formation of accountability however I am not able to participate in the required PT schedule due to the fact that I have no one to care for my 3 children while I am at PT. My husband is no longer in the home so I have sole responsibility for my children. Preparing them for a babysitter at 5 AM would be utterly unsound and incredibly difficult." 9. She received general counseling on 19 April 1989 for being absent from the PT accountability formation at 0715 hours on 19 April 1989. 10. She received general counseling on 20 April 1989 for being absent from the accountability formation at 0615 hours on 20 April 1989. 11. She received general counseling on 26 April 1989, notifying her that her unit was in the process of separating her from the U.S. Army effective immediately under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 5 (Separation for Convenience of the Government). 12. On 10 May 1989 and 11 May 1989 in written statements, she states she has spoken to her first sergeant and company commander, and they are aware of her financial and domestic situations. She was going through separation from her husband and was the sole care provider for her children. Because of being the sole care provider for her children, she was unable to attend PT formation at 0615 hours. Due of these problems, she feels she should have been given more assistance regarding being able to request a hardship discharge. 13. The DA Form 2496 (Disposition Form) (Notification that Separation has been Recommended Pursuant to Army Regulation 635-200 (Notification Procedure)), 5 June 1989, from Headquarters and Headquarters Company, Materiel Management Center, Division Support Command, notified her of initiation of action to separate her from the Army for the convenience of the Government. The reason for the proposed action cited her continual interference of parental duties with fulfillment of her military obligations. 14. On 5 June 1989, she acknowledged receipt of the notification of separation. She acknowledged having been advised by her consulting counsel of the basis for the contemplated action to separate her for parenthood under the provisions of Army Regulation 635-200, chapter 5, and its effects; of the rights available to her; and the effect of any action taken by her in waiving her rights. She waived consideration of her case by an administrative separation board. Statements in her behalf were not submitted. a. She acknowledged she understood that she may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to her. She further understood that she may be ineligible for many or all benefits as a veteran under both Federal and State laws as the result of issuance of a discharge under other than honorable conditions. b. She acknowledged she understood that if she were being considered for separation for fraudulent entry, her enlistment might be voided under certain circumstances and that all pay and allowances would be suspended immediately upon verification of the fraudulent entry. 15. The Headquarters and Headquarters Company, Materiel Management Center, Division Support Command, memorandum for record (Applicant), 6 June 1989, from her company commander states: a. On 5 June 1989, she was separated from service in the Active Army under the provisions of Army Regulation 635-200, paragraph 5-8 (Involuntary Separation Due to Parenthood). b. On 6 June 1989, the Division Support Command legal section reviewed her personnel file and discovered she may have enlisted in the U.S. Army under fraudulent conditions. The following facts are presented as evidence of fraud: (1) On27 August 1983, she married (2) She subsequently gave birth to three children on (3) On 1 March 1988, she enlisted in the U.S. Army using her maiden name and birth certificate as verification. At that time, she denied her marital and motherly status. (4) On 27 April 1988, she requested a name change on all official records. (5) Her children have been living with her since her arrival at Fort Riley, KS. Her inability to properly care for her children is the primary reason for the separation action being taken under the provisions of Army Regulation 635-200, paragraph 5-8. Had she mentioned her parental status upon enlistment, she would not have been allowed to enlist. c. This command has found it to be in the best interest of the Army to discharge the applicant as soon as practical rather than suspend her discharge pending further punitive and non-punitive measures. However, this memorandum is being written to be placed in her Official Military Personnel File permanently to preclude her from upgrading her discharge to an honorable status or to preclude further fraud upon the Government. 16. She was relieved from active duty on 13 June 1989 and transferred to the U.S. Army Reserve Control Group (Annual Training). Her DD Form 214 shows in: * item 4a (Grade, Rate or Rank) – Private First Class * item 4b (Pay Grade) – E-3 * item 12c (Net Active Service This Period) – 1 year, 3 months, and 13 days * item 12h (Effective Date of Pay Grade) – 1 March 1988 * item 23 (Type of Separation) – Relief from Active Duty * item 24 (Character of Service) – Under Honorable Conditions * item 25 (Separation Authority) – Army Regulation 635-200, paragraph 5-8 * item 28 (Narrative Reason for Separation) – Inability to Perform Prescribed Duties Due to Parenthood BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, and published Department of Defense guidance for consideration of changes to discharges. The Board considered the applicant's statement (circumstances regarding the period of AWOL), her record of service, the frequency and nature of her misconduct, the reason for her separation and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined the type of separation she received and the reason for her separation were not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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, 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 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. 2. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), 11 September 1987, prescribed eligibility criteria governing the enlistment of persons, with or without prior service, into the Regular Army and U.S. Army Reserve. Table 5-1 (Instructions for Completing the DD Form 1966-Series (Record of Military Processing – Armed Forces of the United States)), states for: a. item 10 (Marital Status), select from the list below: * Annulled * Divorced * Pending Divorce * Legally Separated * Married * Single * Widowed b. item 11 (Number of Dependents), enter the number of dependents as defined in the glossary. For enlistment purposes, "dependent" provides a clear-cut rule that will prevent enlistment of persons who have family and financial responsibilities that would be difficult, if not impossible, to meet while they are members of the military service; and c. item 39 (Remarks), enter the following statement for all married applicants with dependents under 18 years of age who are not required to submit a request for dependency waiver: "I have (number of) dependents under the age of 18. I understand that the responsibility that I have for care of my children will not be a sufficient reason of itself, for not satisfactorily participating in the Ready Reserve during my period of enlistment. I further understand that it is my responsibility to make proper arrangements for the care of my dependents during periods of military service when I am required to perform duty in an area where dependents are not authorized." 4. Army Regulation 635-200 (Personnel Separation – Enlisted Personnel), 15 December 1988, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. This regulation provided the authority and general provisions governing the separation of Soldiers before expiration term of service to meet the needs of the service and its Soldiers. a. Chapter 2 (Procedures for Separation), Section II (Notification Procedure), paragraph 2-2 (Notice), stated when the reason for separation requires the notification procedure, the commander will notify the Soldier in writing that his or her separation has been recommended per this regulation. The commander will cite specific allegations on which the proposed action is based. The commander will also include the specific provisions of this regulation authorizing separation. The Soldier will be advised of the type of discharge and character of service recommended by the initiating commander. b. Paragraph 5-1 (Characterization of Service or Description of Separation) stated a Soldier being separated for the convenience of the Government will be awarded a character of service of honorable, under honorable conditions, or an entry-level separation. c. Paragraph 5-5 (Characterization of Service or Description of Separation) stated no Soldier will be awarded a character of service of under honorable conditions under this section unless the Soldier is notified of the specific factors in his or her service record that warrant such a characterization, using the notification procedures. d. Paragraph 5-8 (Involuntary Separation Due to Parenthood) stated Soldiers will be considered for involuntary separation when parental obligations interfere with fulfillment of military responsibilities. Specific reasons for separation because of parenthood included inability to perform prescribed duties satisfactorily, repeated absenteeism, late for work, inability to participated in field training exercises or perform special duties such as charge of quarters and staff duty noncommissioned officer, and nonavailability for worldwide assignment or deployment according to the needs of the Army. 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. The notification procedure will be used for separation under this paragraph. For characterization of service or description of separation, see paragraph 5-5. e. Chapter 6 (Separation Because of Dependency or Hardship) stated Soldiers who are sole parents and whose children under 18 years of age reside within the household may apply for separation under hardship. A "sole parent" is defined as a parent who is single by reason of never having been married, or is divorced or legally separated and has been awarded child custody by judicial decree or court order, or is a widow or widower. f. Paragraph 7-17 (Incident of Fraudulent Entry) stated fraudulent entry is the procurement of an enlistment, reenlistment, or period of active service through any deliberate material misrepresentation, omission, or concealment of information which, if known and considered by the Army at the time of enlistment or reenlistment, might have resulted in rejection. 5. Army Regulation 635-5-1 (Separation Program Designators), 1 October 1982, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designator codes to be used for these stated reasons. There was no separation program designator code established for the purpose of securing proper custody of children. 6. Army Regulation 635-5 (Separation Documents), 15 August 1979, prescribed the separation documents that were prepared for individuals upon retirement, discharge, or release from active military service or control of the Army. It established standardized policy for preparing and distributing DD Form 214. The detailed instructions stated for: a. item 23 (Type of Separation), enter one of the terms listed below for enlisted personnel: * Relief from Active Duty * Discharge * Retirement * Separation and Order to Additional Active Duty * Relief from Active Duty for Training * Release from Custody and Control of the Army * Relief from Active Duty for Training and Discharge from the Reserve of the Army b. item 28 (Narrative Reason for Separation), enter the reason for separation shown in Army Regulation 635-5-1 based on the regulatory or statutory authority. c. There was no provision for a humanitarian characterization or narrative reason for separation. 7. Title 38, Code of Federal Regulations, section 3.12a (Minimum Active Duty Service Requirement), provides the following guidance: a. Definitions. (1) The term minimum period of active duty for the purposes of this section means the shorter of the following periods: 24 months of continuous active duty or the full period for which a person was called or ordered to active duty. (2) The term benefit includes a right or privilege, but does not include a refund of a participant's contribution. b. Effect on VA benefits. Except as a person excluded, an eligible person who does not complete a minimum period of active duty is not eligible for any benefit under Title 38, United States Code or under any law administered by the VA based on that period of active service. c. Exclusions. The provisions of paragraph (b) of this section are not applicable to the following cases, to include a person who is discharged or released under Title 10, U.S. Code, section 1171 or 1173 (early out or hardship discharge). //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220001676 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1