Can a Soldier volunteer for separation due to not having a valid Family Care Plan? | AskTOP.net - Leader Development for Army Professionals

Can a Soldier volunteer for separation due to not having a valid Family Care Plan?

Can I receive a voluntary chapter for failure to obtain a family care plan?

Separation due to the responsibilities of parenthood is covered under paragraph 5-8, AR 635-200, “Involuntary Separation Due to Parenthood.” IAW this paragraph, Soldiers will be considered for involuntary separation when the obligations of parenthood interfere with fulfillment of military responsibilities.

Specific reasons for separation under this paragraph include, but are not limited to:

  1. Inability to perform prescribed duties satisfactorily.
  2. Repeated absenteeism.
  3. Repeated tardiness.
  4. Inability to participate in field training exercises or perform special duties such as CQ and staff duty noncommissioned officer (NCO).
  5. Non-availability for worldwide assignment or deployment according to the needs of the Army.

Separation is not mandatory. If the command determines that they can work with the Soldier’s situation, then the command may decide not to separate. I have also seen units that decide if a Soldier is within 12 months of their ETS date, they will not separate the Soldier early, but work with that Soldier to complete their contract. This normally occurs when the unit is not on a rotation schedule for say NTC or JRTC before the Soldier’s ETS.

Separation for parenthood is one of the chapters that Soldiers in the past have used to “work the system” to get out of their military contract. Because of this, units are more cautious when initiating this chapter. In the legal offices that I have worked in, we make it a requirement for the unit 1SG or Commander to verify the conditions that the Soldier stated in his Family Care Counseling Packet.  For example, if the Soldier states that their spouse left them with the children and the Soldier’s parents or siblings are unable/unwilling to care for the children if the Soldier gets deployed, the 1SG or Commander must submit a signed statement that they verified the information by personally contacting the Soldier’s relatives.

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posted on 07/02/2012 under Q&A
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Staff Sergeant(R) Douglas “Eck” Eckstein is a former Paralegal NCO with over eleven years of service in the Army. He has served overseas tours in Korea and Iraq. Eck served on active duty for seven years working in the personnel administration field then, after a break in service, returned to active duty in 2009 when he earned the Military Occupational Specialty, 27D (paralegal). He has worked in the Office of the Staff Judge Advocate from Division level down to unit level. He has expertise in all aspects of military law, with extensive emphasis in Administrative Law and Soldiers Rights. “I am not an attorney and any views presented are my own and are not to be interpreted as legal advice. Furthermore, my views do not necessarily represent the views of DoD or its Components.”

Disclaimer: Though all content posted on AskTOP.net is reviewed by our qualified subject matter experts, you should not make decisions based solely on the information contained in this post. Use information from multiple sources when making important professional decisions. This is not an official government website.

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    Comments

  • amos culbreth

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    Im failed my apft and and about to ets I was wondering am I still allow to get an ETS award . PT failure is the only negative conseling i have ever recieved

  • Victor

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    Thank you!
    But my Question is am already out I mean separated with Family Care, now my situation is good now and I want to come back in Army as Army Reserve, what do I have to do and which documents I need to come back in?

    • Eck

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      Speak with the local reserve recruiter. You should not have a problem signing up with the reserves. As long as you can provide a valid family care plan or show your situation does not require one. You best avenue is to speak with a reserve recruiter in your area. They are the SME for your situation.

      Eck

  • Victor

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    What do I need to come back to Army Reserve when I separated from Active Duty with Art. 5-8(family Care Plan)

  • Eck

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    Ray,

    I’m going to chime in on CSM Gerecht’s points.

    If you do not have a valid family care plan, then by default, your wife does not have a valid plan either. As you know, dual military couples cannot use each other as their family care plan provider.

    As you also know, both you and your wife have to have separate plans, even if you are using the same provider. Now, if you have different providers, and your provider is unwilling or unable to care for your child(ren), then just update your plan to your wife’s provider.

    Also, even though you are scheduled for an FTX, if your wife is not going, is she able to care for the children? If so, it doesn’t matter if your plan is valid or not.

    The command does not have to implement a Bar to Reenlistment or initiate separation. The regulation states it is recommended the command consider these actions if a Soldier does not have a valid plan.

    Now, here is the key issue: If you and your wife do not have valid plans, and remember if one doesn’t then the other by default doesn’t, the command can separate both of you at the same time. I have seen this done, especially if the command believes the dual military couple is trying to work the system to get one separated. Remember, even though the argument is going to be, “When one of us gets separated, a care plan will not be needed”, until then, you are both Soldiers and subject to the regulations until your last day.

    I have also seen separation actions be initiated on both Soldiers, then the commander decides which Soldier get’s separated and remove the choice from the couple.

    Now these scenarios have been when both Soldiers were within the same command. If the Soldiers are in different commands, then it is up to each commander to decide what action to take. Remember though, if your plan changes, by regulation, you are required to notify your command. I realize you have, but has your spouse notified her command that your plan may be invalid, which in turn, makes her’s invalid? If she hasn’t, and it becomes an issue, she could face UCMJ action for not obeying and order or regulation.

    If you have additional questions specific to your situation, speak with your servicing JAG office and/or go to the legal assistance office on base and speak to an attorney there.

    Also, CSM Gerecht’s recommendation to use your 1SG/CDR open door policy is a great idea. This one meeting could straighten everything out for you. Your NCOIC may not have informed the 1SG/CDR of your situation.

    I wish you the best of luck.

    Eck
    “I am not an attorney. The opinions expressed are my own and are not to be interpreted or inferred as legal advice.”

  • Ray

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    I am dual military and was told to get my family care plan together. I expressed a concern to my NCOIC well over a month ago while asking of him if I could get a formal counseling from the commander that there was a possibility that the person that would have been designated as my care provider would not be able to do so. He told me that either my wife or myself would have to be separated and I already expressed to him that I would so that my wife could further her career. Since that time I have been asking if he could do my counseling and have yet to get anything documented. There is a field training exercise coming up he knew well in advanced that there was a chance I would not be able to go but he continued to push giving me a counseling because he didn’t want the 30 day period to expire prior to the FTX. Another NCO has brought up the issue to him and he is telling me that I would be forced to go with or without a family care plan even if I do not have anyone to care for my child.

    • Mark Gerecht

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      Ray,
      AR 600-20 para 5-5 contains all the requirements associated with Family Care Plans. The Commander must counsel you or their designated representative. You can also get a 30 day extension if necessary. If you fail to get a Family Care Plan the command should implement a Bar to Reenlistment and/or a Separation.

      Now to your specific issue. You might want to ask to the see the Commander/1SG on open door policy. If you have attempted this you might consider making your request in writing. Another option is to request open door policy with the BNCDR/CSM. If there is difficulty contacting these individual you might be able contact them via email but if you do this do so in a professional and tactful way.

      If you decide such a meeting is necessary then you should consider putting your thoughts down on paper. Make your notes, questions, concerns, proposed solutions. When speaking to the chain of command make sure you are factual, calm, unemotional, and professional.

      Given my understanding of your situation I am not sure why the Commander would not provide you the written documentation. Another option might be to prepare a memorandum for record explaining your situation and documenting the conversation in which the Commander said one of you would need to separate. Before doing this I would encourage you to contact JAG to make sure there are not any unexpected or unintended consequences.

      Did you find the information useful? We appreciate your feedback!
      Hope this helps!
      TOP

  • Eck

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    You would probably not be able to join the reserves directly from active duty since you would still be required to have a family care plan in the reserves for any potential deployments. You need to go speak with the reserve recruiter on your base and ask them. They are the SMEs for your situation. If they tell you that you can not join the reserves directly from active duty, then ask what the procedure would be to join the reserves after you get your family situation straightened out.

    I commend you and you have my respect for wanting to continue to serve your country during a time of war while dealing with your family issues.

    I wish you the best of luck during your transition.

    Eck
    “I am not an attorney. The opinions expressed are my own and are not to be interpreted or inferred as legal advice.”

  • Timithy Bailey

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    Can i go Army Reserves if my wife divorces me and I separate from Active duty for a Family Care Plan chapter?

  • Most Wanted

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    Me and my wife are dual military and she is currently pregnant. Neither of us have family members that would be able to take our child if anything were to come up ie deployment. My wife does not want to be separated from the military but I would be willing to voulnter for the purpose of my childern. Is this possible and if so what steps need to be taken?

    • Eck

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      I have had this issue a few times in the past. Of course your wife can separate voluntarily due to the pregnancy under chapter 8.

      Since your wife does not want to separate either or both of you can be separated if you do not have a family care plan after the child is born. Neither of you qualify for separation under chapter 5-8 until the child is born.

      Now, once the child is born, the following issues need to be considered.

      1. Since both of you are military, you will both be required to submit a valid family care plan. If both of you cannot, then you both can be separated. Your wife’s family care plan cannot be you taking care of the child since you are still active. You would not be a valid care provider unless you are already separated. A spouse anticipating separation is not a valid provider. (Does this make sense?)

      2. Do both of you fall under the same separation authority? (Special Court-Martial Convening Authority – Brigade (O-6) Commander). If so, then if your command supports you being separated and retaining your wife, then this can be coordinated through your chain of command up to the separation authority.

      3. If you are under different separation authorities, then it may be more difficult to accomplish this coordination. Both commands could process each of you for separation. However, I have found, that most commands will support the wishes of the dual military spouses if both Soldiers have a solid record and no disciplinary actions.

      4. Of course, you will both have to prove that extended family members are either unavailable, unwilling, unable, or unsuitable to care for your child in your absence.

      The key thing is to be upfront and communicate your wishes with your chain of command now. Do not wait until the child is born and drop it on them at the last minute when you are required to come up with a family care plan. Let the command know that you do not anticipate being able to come up with valid family care plan once the child is born and it is you and your wife’s desire that she be allowed to continue her service and you be separated. This will also be easier if she outranks you or has a better career path.

      I hope you found this useful.

      Eck

      Disclaimer: I am not an attorney and any views presented are my own and are not to be interpreted as legal advice. Furthermore, my views do not necessarily represent the views of DoD or its Components.

      • Part-Time-Commander

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        Good information about the Family Care Plan and voluntary separation, ECK. Thanks for sharing your wisdom.

        Chuck

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