MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 12 March 2002
         DOCKET NUMBER: AR2001062690

         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. Robert J. McGowan		Analyst

The following members, a quorum, were present:

Ms. Irene N. Wheelwright		Chairperson
Mr. Raymond J. Wagner		Member
Ms. Gail J. Wire		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 to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         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)

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APPLICANT REQUESTS: In effect, that her retirement for length of service be changed to a disability retirement. In achieving this result, she additionally requests: back pay and allowances from the date of her separation until such time as she is rated physically unfit; amendment of Army Regulation (AR) 40-501 (Standards of Medical Fitness) to include female illnesses and diseases, such as uterine fibroid tumors and high-risk pregnancies as unfitting conditions; and sensitivity training for the Army medical community in studying and dealing with incapacitating and debilitating female conditions.

APPLICANT STATES: In effect, that she became pregnant in 1996; that her pregnancy was complicated a “large symptomatic fibroid uterus [and] numerous episodes of degenerating fibroids” and she required bed rest. She contends, in effect, that she could not perform her military duties and should have been processed for a disability separation.

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

She was a Major in the Regular Army, having been commissioned through the Reserve Officers’ Training Corps (ROTC) program at South Carolina State College, Orangeburg, South Carolina, on 16 May 1976. She entered active duty on 20 August 1976 and served until honorably separated on 31 August 1996 by reason of sufficient service for retirement. She was promoted to Major on 1 December 1987. Her terminal assignment was as an instructor at the U.S. Army Logistics Management College, Fort Lee, Virginia.

During her final year of military service, the applicant became pregnant. The Women’s Health Clinic, Kenner Army Community Hospital, Fort Lee managed her pregnancy until her separation on 31 August 1996. Thereafter, her pregnancy was followed by the Medical College of Virginia Health Care System, Richmond, Virginia.

The applicant’s pregnancy was complicated and required greater care than a normal pregnancy. For periods of time during her last several months on active duty, she was confined to her quarters on bed rest. She eventually delivered by Caesarean section and her post-operative course was uncomplicated.

On 29 April 1999, the applicant underwent a total abdominal hysterectomy to resolve her problem with uterine fibroid tumors.

On 1 September 1998, an advisory opinion was obtained from the Army Review Boards Agency (ARBA) medical advisor. The opinion stated that the applicant’s conditions of uterine fibroids and pregnancy at the time of separation were not cause for referral to a Medical Evaluation Board (MEB) per AR 40-501. Therefore, with no unfitting conditions warranting referral to the physical evaluation process, the applicant was deemed fit for separation.
The applicant was provided a copy of the ARBA medical advisor’s opinion. On 8 October 1998, she responded by saying that from 25 June 1996 to 31 August 1996, she was ordered to bed rest by her obstetrician; therefore, she could not have been fit for duty. She also stated that she did not complete her separation physical examination, so she could not have been medically and physically qualified to retire.

AR 40-501, Standards of Medical Fitness, governs medical fitness standards for enlistment, induction, appointment of officers, as well as standards for retention and separation, including retirement. Chapter 3 of the regulation gives the various medical conditions and physical defects, which may render a soldier, unfit for further military service and require referral to an MEB.

AR 635-40, Physical Evaluation for Retention, Retirement, or Separation, establishes the Army Physical Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. It states, in pertinent part, that a soldier whose normal scheduled date of nondisability retirement or separation occurs during the course of hospitalization or disability evaluation may, with his or her consent, be retained in the service until he or she has attained maximum hospital benefits and completion of disability evaluation if otherwise eligible for referral into the disability system.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion, it is concluded:

1. In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

2. The applicant submitted a request for voluntary retirement on 17 January 1996. She requested to be separated on 31 August 1996 and placed on the retired list effective 1 September 1996. That request was accepted and retirement orders were published on 20 February 1996.

3. The applicant did not have a physical condition that warranted or required referral to the Army Physical Disability Evaluation System. Neither pregnancy, nor uterine fibroids are listed in AR 40-501 as conditions requiring referral to an MEB. Pregnancy, no matter how difficult, ultimately resolves, and uterine fibroids are completely treatable. The applicant delivered her baby and recovered from her pregnancy. Likewise, she underwent surgery for successful treatment of her uterine fibroids.
4. According to AR 635-40, the applicant could only have been retained beyond her approved separation date if she were hospitalized or undergoing disability evaluation. Since her medical conditions did not warrant disability evaluation and she was not hospitalized for her pregnancy, her approved separation could not be halted.

5. The applicant’s separation was conducted in accordance with law and regulations applicable at the time. She did not exhibit a disability and was not, and is not, entitled to disability evaluation under the Army Physical Disability Evaluation System.

6. The applicant’s request that AR 40-501 be changed and that the Army Medical Department receive “sensitivity training” in the area of incapacitating and debilitating female conditions is outside the purview of this Board and will not be considered.

7. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__INW __ __RJW __ ___GJW_ DENY APPLICATION

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

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INDEX

CASE ID	AR2001062690
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020312
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	DIRECTOR
ISSUES 1.	145.0000
2.
3.
4.
5.
6.