APPLICANT REQUESTS: The applicant requests that her records be changed to reflect a hardship or convenience of the government discharge instead of a Chapter 8, Pregnancy, discharge. She states in effect, that no base housing was provided for single mothers, offbase housing would create a hardship due to cost and due to her rank child care was not provided. She was also advised that a pregnancy discharge was the way to go.
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 applicants military records show:
She was born on 25 May 1961. She initially entered the Delayed Entry Program on 20 June 1980, enlisted in the Regular Army on 3 July 1980, and was honorably discharged on 25 July 1980 under the provisions of the Trainee Discharge Program, pregnant prior to entry on active duty. She received a reenlistment waiver, reentered the Delayed Entry Program on 22 January 1981 and enlisted again in the Regular Army on 26 January 1981 for 3 years. She completed basic training and Advanced Individual Training and was awarded Military Occupational Specialty 94B (Cook).
On 12 November 1981, the applicant requested separation under the provisions of Army Regulation 635-200, Chapter 8, pregnancy. She was counseled by her unit commander on her entitlements and responsibilities. She initialed her acknowledgment of all items on her counseling checklist. She was offered the option of remaining on active duty to fulfill the term of her enlistment contract but elected instead separation by reason of pregnancy, Chapter 8.
On 18 November 1981, the appropriate authority approved the applicants request for separation with reassignment to the Individual Ready Reserve.
On 2 December 1981, the applicant was relieved from active duty in pay grade E-2 and transferred to the U.S. Army Reserve Control Group (Annual Training). Her service was characterized as honorable. She had completed a total of 11 months of creditable active service and had no lost time.
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 8 of that regulation states, in pertinent part, that an enlisted woman who is medically diagnosed as being pregnant may, after her unit commander has counseled her concerning her options, entitlements and responsibilities, request separation under this paragraph.
Army Regulation 635-200, Chapter 6, states, in pertinent part, that a soldier, including a married service woman who becomes a parent by birth or a soldier who becomes a sole parent, may be separated for hardship when separation from the Service will materially affect the care or support of the family by alleviating undue and genuine hardship. Supporting evidence is required, but in these two cited instances an affidavit from the soldiers immediate commander or officer who is the job supervisor will be considered sufficient to substantiate the applicants claim.
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.
DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 2 December 1981, the date the applicant was relieved from active duty. The time for the applicant to file a request for correction of any error or injustice expired on 2 December 1984.
The application is dated 29 May 1997. 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.
BOARD VOTE:
EXCUSE FAILURE TO TIMELY FILE
GRANT FORMAL HEARING
CONCUR WITH DETERMINATION
Loren G. Harrell
Director
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