MEMORANDUM OF CONSIDERATION   

	IN THE CASE OF:      

	BOARD DATE:           24 OCTOBER 2002                    
	DOCKET NUMBER:   AR2002076049

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Ms. Karen A. Heinz		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 the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	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, the applicant requests that her records be corrected to show that she was discharged because of hardship.   

She states that she requested to be sent home due to hardship.  She expressed her inability to continue [in the Army] because of depression, which caused her a hardship, prior to knowing that she was pregnant.

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

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

The applicant enlisted in the Army for three years on 16 May 1985.  She completed training and in October 1985 was assigned to an artillery battery in Germany as a missile crewmember.  

The applicant’s medical records show that she was treated for various ailments during her service, to include a pulled hamstring, diarrhea, and trauma to the right eye.  A 3 December 1985 physical profile report shows that she was pregnant with an estimated delivery date of 30 July 1986.

A 17 January 1986 report of medical history shows that the applicant had dizziness, associated with an earlier period of her current pregnancy; leg cramps, and difficulty falling asleep.  She indicated on that report that she also had frequent headaches, frequent urination, and car sickness.  She indicated, by marking the “No” block on that report, that she did not have depression or excessive worry, nervous trouble of any sort, or periods of unconsciousness.

The applicant was released from active duty and transferred to the Army Reserve Control Group (Annual Training) on 12 February 1986 under the provisions of Army Regulation 635-200, chapter 8.  She had 8 months and 27 days of service.

Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel from active duty.  Chapter 8 establishes policy and procedures, and provides authority for voluntary separation of enlisted women because of pregnancy.  That chapter allows for counseling and assistance by the unit commander, and states in pertinent part that the soldier may request separation and may request a specific separation date.  The service of a soldier separated for pregnancy will be characterized as honorable.

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.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

There is no evidence, nor has the applicant provided any, to indicate that she requested to be discharged because of a hardship or that she suffered from depression.  There is no evidence to show that her discharge for pregnancy was in error or unjust and as such there is no basis to correct her record as she requests.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 12 February 1986, the date of her release from active duty.  The time for the applicant to file a request for correction of any error or injustice expired on 12 February 1989.

The application is dated 24 June 2002 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.  Prior to reaching this determination the Board looked at the applicant’s entire file.  It was only after all aspects of her case had been considered and it had been concluded that there was no basis to recommend a correction of her record that the Board considered the statute of limitations.  Had the Board determined that an error or injustice existed it would have recommended relief in spite of the applicant’s failure to submit her application within the three-year time limit.  

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__RVO__  __BJE  __  __KAH __  CONCUR WITH DETERMINATION

    Carl W. S. Chun
    Director, Army Board for Correction
	                of Military Records

INDEX

CASE ID	AR2002076049	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20021024	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.