IN THE CASE OF:	

	BOARD DATE:	  15 July 2008

	DOCKET NUMBER:  AR20080006912 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that the authority and reason for her separation be changed from Chapter 8, Army Regulation 635-200 (Pregnancy) to Chapter 6, Army Regulation 635-200 (Hardship). 

2.  The applicant states, in effect, that she was separated due to pregnancy; however, that during her pregnancy, she also being treated for shoulder and thumb injuries. She believes her release from active duty (REFRAD) should have been based on hardship and not pregnancy because she suffered from pain everyday while performing her duties.  She further states she reported to sick call several times based on these conditions, and that she suffers from "Syringomyelia," a condition that began while she was on active duty.

3.  The applicant provides following documents in support of her application:  Statement in Support of Claim (VA Form 21-4138); Possible Symptoms of Syringomyelia; Department of Veterans Affairs (VA) Rating Decision, dated 
6 July 2007; Individual Sick Slips (DD Form 689); Emergency Room Discharge Instructions; Medical Report; 3rd Battalion, 349th Infantry Regiment Memorandum dated 5 July 2004; Report of Medical Examination (DD Form 2808), Report of Medical History (DD Form 2807-1); Results of Retention Physical Examination; Department of Orthopedics and Physical Medicine Work Status Report Form (Form 6011); Admission Instructions; Forrest General Hospital Discharge Instructions; Headquarters, 87th Division, Orders Number 06-058-00001, dated 27 February 2006; Authorization and Consent to Release Information to the VA (VA Form 21-4142); Picayune Rural Health Clinic Letter, dated 10 March 2008; and Third- Party Statements.
CONSIDERATION OF EVIDENCE:

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 Army Board for Correction of Military Records (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.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant’s Official Military Personnel File (OMPF) is void of a separation packet containing the specific facts and circumstances surrounding her separation processing.  The record does contain a DD Form 214 that shows on 12 May 2000, the applicant was honorably REFRAD, in the rank private/E-2 (PV2), after completing 7 months and 13 days of active military service.  The separation document further shows she was separated under the provisions of Chapter 8, Army Regulation (AR) 635-200, by reason of pregnancy, and that she was transferred to the United States Army Reserve (USAR) Control Group.  

3.  The applicant provides Individual Sick Slips (DD Form 689), dated between 12 and 25 April 2000, which show that she was treated for a thumb injury she sustained during a fall while pregnant, and for chest pains during this period while she was still on active duty.  There are no medical records or other documents that indicate the applicant was suffering from a disabling medical condition that rendered her unfit for further service, or that supported her separation processing through medical channels at the time of her REFRAD. 

4.  The applicant also provides medical treatment records prepared subsequent to her REFRAD, while she was serving in the USAR.  These records include a Report of Medical Examination and a Report of Medical History, both dated 
26 August 2004, and a Retention Physical Examination, dated 15 September 2004, which all show she was medically qualified for retention (continued service).  She also provides a memorandum from her unit commander that informed her that based on her sole parent status and the fact that she was having difficulty performing her military duties and meeting her parental obligations, she could qualify for a hardship discharge from the USAR under the provisions of chapter 6, Army Regulation 135-178.  The record gives no indication that the applicant ever pursued this option.  

5.  Army Regulation 635-200 (Administrative Separations) set forth the basic authority for the separation of enlisted personnel.  Chapter 8 establishes policy and procedures and provides authority for voluntary separation of enlisted women because of pregnancy.  It states in pertinent part, that if an enlisted woman is pregnant, she will be counseled by the unit commander using the pregnancy counseling checklist.  The unit commander will explain that the purpose of the counseling is to provide information concerning options, entitlements, and responsibilities and that the Soldier may upon request, be separated per this chapter or remain on active duty.  It also states in pertinent part that the Soldier will sign part one of the Statement of Counseling and be granted at least 7 days to consider the options available.  She will indicate her election by completing part two of the Statement of Counseling. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that the authority and reason for her REFRAD be changed to Chapter 6, Army Regulation 635-200, by reason of Hardship instead of Chapter 8, Army Regulation 635-200, by reason of pregnancy was carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record is void of any indication that the medical conditions the applicant was being treated for while serving on active duty rendered her unfit for further service, or supported her separation processing through medical channels.  To the contrary, all medical examinations completed while she was on active duty and subsequently while she was serving in the USAR all show she was fully medically qualified for service/retention.  

3.  By regulation, an enlisted Soldier who is pregnant will be counseled by the unit commander and provided information concerning options, entitlements, and responsibilities, and upon her request may voluntarily request separation under the provisions of Chapter 8, by reason of pregnancy.  Although there is no separation packet on file, the evidence of record does include a properly constituted DD Form 214 that confirms the applicant was separated under the provisions of Chapter 8, Army Regulation 635-200, by reason of pregnancy.  Procedurally, in order to be separated under these provisions, the applicant would have had to voluntarily request discharge after undergoing extensive counseling on her options and entitlements.  Absent evidence to the contrary, it is concluded the applicant's separation processing was conducted in accordance with the applicable regulation.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  


4.  The evidence of record also provides no indication that the applicant qualified for or requested a hardship discharge during her active duty tenure.  Further, there is no indication that she actually applied for a hardship discharge after she was informed by her USAR commander that she could qualify for such a discharge from the USAR based on her sole parent status, and the conflict she was experiencing between her military obligations and parental responsibilities. 

5.  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.

BOARD VOTE:

________  ________  ________  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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




 _   ______x_   ______________
       CHAIRPERSON
      
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.

ABCMR Record of Proceedings (cont)                                         AR20080006912



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ABCMR Record of Proceedings (cont)                                         AR20080006912


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