IN THE CASE OF:	  

		BOARD DATE:	  	  10 March 2009

		DOCKET NUMBER:  AR20080012969 


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, correction of the separation date shown on her discharge document.

2.  The applicant states, in effect, in July 2007 she requested a discharge based on pregnancy, but she was never told the date her request was granted.  She also states that her husband deployed on 17 August 2007 and she took leave from 17 August to 17 September 2007 to give birth to her daughter.  The applicant further states she was given a 10-day leave extension (to                    27 September 2007) because she was overdue:  The applicant states that: 

     a.  She sent via facsimile (FAX) a copy of her hospital discharge papers to her noncommissioned officer (NCO) on 1 October 2007 so the NCO could start her convalescent leave from 27 September to 6 November 2007.  She also states that she never returned to her unit to clear because she was on convalescent leave, but she did give her NCO permission to transfer her government-issued property for turn-in and to ship her personal property to her.  The applicant adds that documentation shows she was completely cleared on 21 November 2007, which is also the last day she got paid by the Defense Finance and Accounting Service (DFAS).  Additionally, the applicant states that:

     b.  She was eligible and covered (medically) as a sponsor by TRICARE throughout this entire period.  She adds that she received her discharge documents in early December 2007.

     c.  She began receiving letters from the DFAS informing her that she owed money as a result of overpayments from August to November 2007.  She adds “[t[hat is when [she] realized that [she] was discharged on a Chapter 8 (Pregnancy) and that the discharge date was 30 August 2007, before [she] gave birth to [her] daughter.”

3.  The applicant provides a self-authored statement; DD Form 214 (Certificate of Release or Discharge from Active Duty) with an effective date of 30 August 2007; DD Form 256A (Honorable Discharge Certificate), dated 30 August 2007;
DA Form 3349 (Physical Profile), on an undetermined date in May 2007; 
Headquarters and Support Company, 404th Aviation Support Battalion, Combat Aviation Brigade, Fort Hood, Texas, memoranda, all dated 15 May 2007, subject:  Pregnancy Counseling; DA Form 4856 (Developmental Counseling Form), dated 24 July 2007; two DA Forms 31 (Request and Authority for Leave), both undated; Southern Regional Medical Center, Newborn/Maternal Discharge Orders, Riverdale, Georgia, faxed on 1 October 2007; DD Form 1299 (Application for Shipment and/or Storage of Personal Property), dated 23 October 2007 with enclosure; DD Form 619 (Statement of Accessorial Services Performed), dated
6 November 2007 with enclosure; DA Form 137-2 (Installation Clearance Record), dated 21 November 2007 with enclosures, faxed on 6 March 2008;
USA Federal Credit Union, Account Summary, Statement Period 1 November to
30 November 2007; Applicant’s Statement of Permission, faxed on 6 December 2007; DFAS, Denver Center, Denver, Colorado, letter, dated 25 January 2008; and 20 TRICARE South, Humana Military Healthcare Services Statements, dated between 19 September and 5 December 2007.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military personnel records show she enlisted and entered active duty in the Regular Army on 3 November 2005.  Upon completion of basic combat and advanced individual training, she was awarded military occupational specialty 92Y (Unit Supply Specialist).

2.  The applicant's military personnel records contain a DA Form 4187 (Personnel Action), dated 9 August 2007, subject:  Chapter 8 (Pregnancy) with supporting documents that include two Headquarters and Support Company,
404th Aviation Support Battalion, Combat Aviation Brigade, Fort Hood, Texas, memoranda, both dated 15 May 2007, subject:  Pregnancy Counseling, and a
DA Form 4856, dated 24 July 2007:



     a.  The two Headquarters and Support Company, 404th Aviation Support Battalion, Combat Aviation Brigade, Fort Hood, Texas, memoranda, dated
15 May 2007, subject:  Pregnancy Counseling, show the applicant was counseled by her company commander regarding all items on the attached DA Form 4856; she acknowledged she understood that if she elected separation she may receive maternity care at a Department of Defense medical treatment facility, on a space available basis, for up to 6 weeks postpartum for the birth of her child only in a military medical treatment facility that had maternity care capability; and that she may elect a separation date not later than 30 days prior to expected date of delivery, or the latest date her physician would authorize her to travel, whichever was earlier.  The documents further show the applicant acknowledged she understood that the separation authority, in conjunction with her military physician and the needs of the Army, would determine her separation date.  The applicant signed the memorandum indicating she understood the pregnancy counseling.

     b.  The DA Form 4856 shows the applicant was counseled by her company commander and, in pertinent part, was advised she may choose to remain in the service or separate from service; she may request a specific separation date; and that the date must not be later than 30 days before the expected date of delivery or the latest date her military physician would authorize her to travel to her home of record or destination, whichever was earlier.  The DA Form 4856 also shows the applicant was advised she may request ordinary, advance, and excess leave in order to return home or other appropriate place for the birth of her child or to receive other maternity care; that such leave terminates with the onset of labor; and non-chargeable convalescent leave for postpartum care was limited to the amount of time essential to meet medical needs.  Both the applicant and her company commander signed the DA Form 4856 on 24 July 2007.

     c.  The DA Form 4187, dated 9 August 2007, shows the applicant elected to separate from active duty under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Chapter 8 (Separation of Enlisted Women - Pregnancy), and that her due date was 17 September 2007.  The applicant signed the DA Form 4187, along with her company commander, battalion sergeant major, and battalion commander, all of whom recommended approval of the requested separation action.

3.  The applicant's military personnel records contain a copy of Headquarters, Combat Aviation Brigade, 4th Infantry Division, Fort Hood, Texas, memorandum, dated 17 August 2007, subject:  Notification of Separation under Army Regulation 635-200, Chapter 8 [Applicant’s Rank, Name, and Unit of Assignment).  This document shows that the colonel serving as the brigade commander and the authorized separation authority in the applicant’s case approved the applicant’s separation for discharge on 31 August 2007 with service characterized as honorable.

4.  The applicant's military personnel records contain a copy of Headquarters,
III Corps and Fort Hood, Fort Hood, Texas, Orders 233-0133, dated 21 August 2007, that shows the applicant was discharged from the U.S. Army on 30 August 2007.

5.  The applicant’s military personnel records are absent any evidence that shows she requested the withdrawal of her separation request.  

6.  The applicant's military personnel records contain a DD Form 214.  Item 12 (Record of Service), block a (Date Entered AD [Active Duty] This Period) shows she entered active duty this period on 3 November 2005; block b (Separation Date This Period) shows she was separated on 30 August 2007; and block c (Net Active Service This Period) shows she completed 1 year, 9 months, and
28 days of net active service this period.  The DD Form 214 shows the applicant was honorably discharged per Army Regulation 635-200, Chapter 8, based on pregnancy or childbirth.  The DD Form 214 also shows the applicant was not available to sign the document.

7.  In support of her application, the applicant provides, the following documents:

     a.  A DD Form 214 with an effective date of 30 August 2007 and DD Form 256A, dated 30 August 2007, that show, in pertinent part, the applicant was honorably discharged on 30 August 2007.

     b.  DA Form 3349, with an undetermined date in May 2007 that shows,          in pertinent part, the applicant’s pregnancy, estimated delivery date was            18 September 2007.

     c.  Three Headquarters and Support Company, 404th Aviation Support Battalion, Combat Aviation Brigade, Fort Hood, Texas, memoranda, all dated
15 May 2007, subject:  Pregnancy Counseling and DA Form 4856, dated 24 July 2007.  Two memoranda and the DA Form 4856 were previously considered in this Record of Proceedings.  The third memorandum, dated 15 May 2007, shows the applicant acknowledged the counseling sessions; elected separation for reason of pregnancy per Army Regulation 635-200, Chapter 8; and indicated a desire to remain on active duty until 15 July 2007, and in no case not later than 30 days prior to her expected date of delivery.  This document is absent any indication by the applicant that she elected to remain on active duty to fulfill the terms of her enlistment contract.

    d.  Two DA Forms 31, both are undated.  The first DA Form 31 shows, in pertinent part, the applicant requested 30 days of ordinary leave from 17 August to 17 September 2007; the leave request was assigned Control Number           07-1067; and the applicant departed her unit at 0001 hours, 17 August 2007, to proceed to her leave address in Riverdale, Georgia.  The second DA Form        31 shows 42 days of other (convalescent) leave was requested for the period    27 August to 7 November 2007.  This DA Form 31 is absent a Control Number; shows the applicant was signed out of her unit at 0600 hours, 27 August 2007; returned at 2100 hours, 7 November 2007; and that the period of chargeable leave was from 27 August to 7 November 2007.  The DA Form 31 also has a handwritten note in the margin (presumably written by the applicant) indicating that the period of chargeable leave should begin on 17 September 2007, not on 27 August 2007.

     e.  Southern Regional Medical Center, Newborn/Maternal Discharge Orders, Riverdale, Georgia, faxed on 1 October 2007, show the applicant and her child were discharged from the medical center at 1045 hours, on 27 September 2007.

     f.  DD Form 1299, dated 23 October 2007, with an enclosure that shows, in pertinent part, the applicant authorized Sergeant B____ to act on her behalf to ship her personal property from Killeen, Texas to Owings Mills, Maryland.

     g.  DD Form 619, dated 6 November 2007, with an enclosure that shows, in pertinent part, the applicant’s agent authorized shipment of her personal property from Killen, Texas to Owings Mills, Maryland on 6 November 2007.

     h.  DA Form 137-2, dated 21 November 2007 with enclosures, faxed on 
6 March 2008, that shows, in pertinent part, the applicant was cleared from Fort Hood, Texas on 21 November 2007 and out-processed on 3 December 2007, per Headquarters, III Corps and Fort Hood, Fort Hood, Texas, Orders 233-0133, dated 21 August 2007, that discharged the applicant on 30 August 2007 under the provisions of Army Regulation 635-200, Chapter 8.  The enclosed worksheet shows the applicant’s separation date as “Aug 30 07” (i.e.., 30 August 2007), the applicant certified that the information listed on the worksheet was accurate and correct to the best of her knowledge, and she placed her signature on the document on 21 November 2007.  This documentation further shows that the applicant’s DD Form 214 was sent to her on 3 December 2007.

     i.  USA Federal Credit Union, Account Summary, Statement Period
1 November to 30 November 2007, that shows, in pertinent part, the applicant’s account was credited with two DFAS deposits received from the DFAS on
14 November and 29 November 2007.

     j.  Applicant’s Statement of Permission, faxed on 5 December 2007, that shows the applicant authorized a wire transfer of funds from her USA Federal Credit Union savings and checking accounts to her Wachovia checking account and that she instructed her USA Credit Union accounts be closed.

     k.  DFAS, Denver Center, Denver, Colorado, dated 25 January 2008, that shows the applicant was notified of an individual debt she owed the Department of Defense, in the amount of $5,246.78, due to mid-month September through mid-month November 2007 and end of month September through end of month November 2007 payments that posted to her account and were not considered in her final pay computation.

     l.  Twenty TRICARE South, Humana Military Healthcare Services Statements, dated 19 September to 5 December 2007, that document the TRICARE benefits the applicant received from 6 September to 18 October 2007.

8.  Army Regulation 635-200, in effect at the time of the applicant's separation from active duty, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  Chapter 8 establishes policy and procedures and provides authority for voluntary separation of enlisted women because of pregnancy.  Paragraph 8-9 (General) provides if an enlisted woman is pregnant, she will be counseled by the unit commander using the pregnancy counseling checklist and 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 or remain on active duty.  This document also shows that an enlisted woman who requests separation in writing may subsequently request withdrawal of the separation request.  Based on the circumstances of the case and the best interest of the Army, the separation authority will determine, in writing, if the Soldier will be separated, as previously requested, or retained.

9.  Army Regulation 635-5 (Personnel Separations - Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that the source documents for entering information on the DD Form 214 will be the Personnel Qualification Record, Enlisted Record Brief, enlistment/reenlistment documents, personnel finance records, discharge documents, separation orders, Military Personnel Records Jacket, or any other document authorized for filing in the Official Military Personnel File.
10.  Table 2-1 (DD Form 214 Preparation Instructions) of the Separation Documents regulation, in effect at the time of the applicant's discharge, contains item-by-item instructions for completing the DD Form 214.  The instructions for Item 12 (Record of Service) state to use extreme care in completing this block since post-service benefits, final pay, retirement credit, etc. are based upon the information contained herein.  It also instructs for block a to enter the beginning date of the enlistment period or tour of active duty for which a DD Form 214 was not issued; block b enter the separation date this period; and block c enter the amount of service this period (subtract 12a from 12b).  Lost time under Title 10, United States Code, section 972, and non-creditable time after expiration term of service, if any, will be deducted.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the separation date shown on her discharge document should be changed to a date in November 2007 because she requested discharge based on her pregnancy, but was never told the date her request was granted; she took leave beginning 17 August 2007; her leave was extended until 7 November 2007; and she was cleared from her former unit on 21 November 2007.

2.  There is no evidence of record that shows the applicant elected to remain in the service for the birth of child and then took non-chargeable convalescent leave for postpartum care.

3.  The evidence of record shows that the applicant was provided pregnancy counseling on 15 May 2007 and 24 July 2007 that, in pertinent part, included her acknowledgement that she may request a specific separation date; and that the date must not be later than 30 days before the expected date of delivery or the latest date her military physician will authorize her to travel (emphasis added)..  The evidence of record also shows the applicant’s due date was 17 September 2007; she submitted her request for separation from active duty under the provisions of Army Regulation 635-200, Chapter 8, on 9 August 2007; the separation authority approved the applicant’s request for discharge on 17 August 2007 with a separation date of 31 August 2007; and the applicant departed her unit on leave on 17 August 2007.  The evidence of record further shows that orders were issued on 21 August 2007 promulgating the applicant’s discharge under the provisions of Army Regulation 635-200, Chapter 8, effective 30 August 2007.


4.  There is no evidence of record that shows the applicant requested withdrawal 
of her separation request or that the separation authority directed the applicant be retained in the U.S. Army beyond 31 August 2007.

5.  The evidence the applicant provided in support of her claim was carefully considered.  The majority of the evidence provided documents actions that occurred after she departed her unit on 17 August 2007, including her maternity and postpartum medical care that was covered by TRICARE, along with her efforts to obtain her personal property from her unit at Fort Hood, Texas and to transfer her personal funds subsequent to her discharge from the medical center. The DA Forms 31 the applicant provides offer questionable information in that they are undated, not completely filled out, and not properly authenticated with the signature of both the requestor and approving authority.  The two DA Forms 31 also show non-consecutive dates for the two leave periods (i.e., from
17 August to 17 September 2007 and from 27 August to 7 November 2007), in effect, two overlapping leave periods.  Moreover, on 21 November 2007, the applicant certified a DA Form 137-2 with her signature that her separation date was 30 August 2007.  Thus, in view of the foregoing, the applicant provides insufficient evidence in support of her claim that she was not aware of her separation date.  Therefore, the separation date on her DD Form 214 should not be changed.

6.  In view of all of the foregoing and in the absence of evidence to the contrary, the applicant is not entitled to correction of her discharge document.

7.  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)                                         AR20080012969



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ABCMR Record of Proceedings (cont)                                         AR20080012969



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