BOARD DATE:	  16 March 2010

		DOCKET NUMBER:  AR20090015119 


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 correction of the narrative reason for her separation and related separation code from "pregnancy or childbirth" to "disability" or "convenience of the government."

2.  The applicant states her pregnancy discharge should be changed to a medical "disability" because she had shin splints incurred in the line of duty.  Alternatively, the reason should change to "convenience of the government" because her pregnancy made her unable to deploy with her unit.  She also states:

	a.  During her exit interview at Fort Bragg, NC, she was informed she would be entitled to all educational and military benefits.  No one mentioned to her that she needed 28 more days of active duty to fulfill 2 years of her active duty commitment.  Her counselor assured her that she would be eligible for all veterans and educational benefits.  She feels she was given incorrect information and had no reason to doubt her counselor.

	b.  If she had known all the specifics, she would have avoided all these problems by simply staying on active duty an additional 28 days.  She feels misinformed and lied to.  She earned her medical and educational benefits and wants her DD Form 214 (Certificate of Release or Discharge from Active Duty) corrected.  After all, item 6 (Reserve Obligation Termination date) of her DD Form 214 states she has an obligation through 15 April 2015.


3.  The applicant provides, in support of her application, a copy of her DD Form 214, dated 1 April 2009; a copy of her DA Form 3349 (Physical Profile), dated 15 January 2009; a copy of Orders 049-0255, issued by U.S. Army Installation Management Command (IMCOM), Fort Bragg, dated 18 February 2009; a copy of an individual sick-call slip, dated 23 April 2000; and copies of several Standard Forms (SF) 600 (Chronological Record of Medical Care), dated 28 April, 23 July, 18 August, 6 September, 6 November, and 2 December 2008.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show she enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) in the rank/grade of specialist four (SPC)/E-4 for a period of 8 years on 16 April 2007.  She understood that her period of time in the DEP is not creditable for pay but is counted toward fulfillment of her 8-year military service obligation (MSO).  Her Reserve service obligation was established as 15 April 2015, 8 years from the date she enlisted in the DEP.

2.  On 29 April 2007, she was discharged from the USAR DEP and she enlisted in the Regular Army (RA) for a period of 3 years and 21 weeks.  She completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 88M (Motor Transport Operator).  She was assigned to Company E, 307th Forward Support Battalion, Fort Bragg.

3.  On 7 November 2008, she underwent pregnancy counseling by her unit commander concerning the decisions she would have to make in connection with her pregnancy, to include retention or separation, maternity care, leave, maternity clothing and uniform, and housing allowance and Government quarters.

4.  On 18 November 2008, she was issued a temporary physical profile for pregnancy.  The profiling officer indicated her expected delivery date was on or about 30 June 2009.

5.  On 8 December 2008, by memorandum, she indicated that she desired separation from the Army by reason of pregnancy per Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 8, and that there was no coercion on the part of the counselor influencing her decision.  She indicated that she desired to remain on active duty until 1 April 2009.

6.  On 15 January 2009, she was issued another temporary physical profile for pregnancy.  The profiling officer indicated her expected delivery date was on or about 22 July 2009.
7.  On 6 January 2009, she requested separation under the provisions of Army Regulation 635-200, paragraph 8-1, by reason of pregnancy with a desired separation date of 1 April 2009.

8.  On 27 January 2009, her immediate commander recommended approval of her separation with an honorable discharge.

9.  On 3 February 2009, she underwent pre-separation counseling on educational benefits.  She indicated that she received counseling on Veterans benefits and understood that she must receive an honorable discharge and meet minimum time-in service requirements to be eligible to receive benefits.  She also understood the Department of Veterans Affairs (VA) determines eligibility for benefits and dollar amounts.

10.  On 10 February 2009, her intermediate commander recommended approval of her separation with an honorable discharge.

11.  On 12 February 2009, the separation authority approved her request for separation under the provisions of Army Regulation 635-200, chapter 8, by reason of pregnancy and directed her service be characterized as honorable and that she be transferred to the Individual Ready Reserve (IRR) for completion of her Reserve obligation.

12.  On 1 April 2009, she was accordingly released from active duty and transferred to the USAR Control Group (Reinforcement) for completion of her Reserve obligation.  The DD Form 214 she was issued confirms she was separated under the provisions of Army Regulation 635-200, chapter 8, with a narrative reason of separation as "pregnancy or childbirth" and a separation code of "MDF."  This form further confirms she completed a total of 1 year, 11 months, and 2 days of creditable military service.  Item 6 (Reserve Obligation Termination Date) of her DD Form 214 shows the entry "20150415."

13.  There is no indication in her records that she suffered an injury or illness that would have warranted her entry into the Physical Disability Evaluation System (PDES).  Also, her records do not indicate she was issued a permanent physical profile that affected her duty performance, or that she underwent a medical evaluation board (MEBD) or a physical evaluation board (PEB).

14.  The applicant submitted the following medical documents:

	a.  A copy of a sick-call slip, dated 23 April 2008, that shows she needed allergy medication.  She was prescribed Allegra for 2 days.

	b.  Copies of several SFs 600, dated on various dates in 2008, showing she was seen for allergies, difficulty breathing, respiratory infection, and nasal congestion.

	c.  A copy of SF 600, dated 6 November 2008, showing she was seen for shin splints primarily in the left shin.  The form shows she had previously been on a
2-month temporary profile that allowed her to run at her own pace and distance.  She was prescribed medications and counseled on strengthening techniques.

	d.  A copy of a record of medical care that essentially shows she was pregnant and made visits to her doctor(s) regarding her pregnancy.

15.  Army Regulation 635-200 provides for the separation of enlisted personnel.  Chapter 8 establishes policy and procedures and provides authority for voluntary separation of enlisted women because of pregnancy.  The unit commander will direct an enlisted woman who believes that she is pregnant, or whose physical condition indicates that she might be pregnant, to report for diagnosis by a physician at the servicing military medical treatment facility.  When service medical authorities determine an enlisted woman is pregnant, she will be counseled and assisted as required by chapter 8.  Examination for pregnancy will be conducted as a complete medical examination.  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 remain on active duty or upon request, be separated per this chapter.  She may request a specific separation date; however, the separation authority and her military physician will determine the separation date.  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 to her home of record or entry on duty destination, whichever is earlier.  The separation authority will approve the request according to this chapter.  An honorable discharge was normally appropriate for separation under this paragraph. 

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES 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 office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  If the MEBD determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to PEB.

17.  Paragraph 3-2b of Army Regulation 635-40 states that disability compensation is not an entitlement acquired by reason of service incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

18.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the Department of Veterans Affairs Schedule for Rating Disabilities.  Department of Defense Instruction (DODI) 1332.39 and Army Regulation 635-40, Appendix B, modify those provisions of the rating schedule inapplicable to the military and clarify rating guidance for specific conditions.  Ratings can range from 0 to 100 percent, rising in increments of 10 percent.

19.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The purpose of the separation document is to provide the individual with documentary evidence of their military service.  It is important that information entered on the form should be complete and accurate.  Chapter 2 of contains guidance on the preparation of the DD Form 214.  It states item 6 shows the Soldier's Reserve Obligation Termination date.  This is the completion date of the statutory MSO incurred by a Soldier on initial enlistment or appointment in the Armed Forces.  DOD policy requires a Soldier with no previous military service who enlisted or was appointed on or after 1 Jun 84 to serve a period of 8 years.  The MSO starts on the date of initial enlistment or appointment in the RA or the USAR to include the DEP.  DEP time is credited in computing this date.  Soldiers within 90 days of their MSO termination date at separation are considered to have completed their MSO.

20.  Army Regulation 635-5-1 (Separation Program Designator Codes) states that the separation program designator (SPD) codes are three-character 
alphabetic combinations which identify reasons for and types of separation from active duty.  The primary purpose of SPD codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the 
internal use of the DOD and the Military Services to assist in the collection and analysis of separation data.  The "MDF" SPD code is the correct code for Soldiers separating (voluntary) under Army Regulation 635-200, chapter 8, by reason of pregnancy or childbirth.
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the narrative reason for her separation should show "disability" or "convenience of the government."

2.  The evidence of record shows the applicant became pregnant and, as required by applicable regulation, underwent pregnancy counseling.  She voluntarily elected separation from the Army and indicated that during the counseling session there was no coercion on the part of the counselor influencing her decision.  Her chain of command supported her decision and her separation was ultimately approved.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  There does not appear to be an error or an injustice.

3.  Her narrative reason for separation and corresponding SPD code were assigned based on the fact that she voluntarily requested separation for pregnancy.  Absent the pregnancy, there was no fundamental reason to process her voluntary request for separation.  The underlying reason for her release from active duty was her pregnancy.  The only valid narrative reason for separation permitted under that paragraph is "Pregnancy or Childbirth" and the corresponding SPD code is "MDF."

4.  With respect to medical disability, the evidence of record shows she suffered some illnesses during her military service and was seen by medical personnel. However, there is no evidence in her records that her illness was determined to be in the line of duty or it led to the issuance of a permanent physical profile or that a determination was made by medical authorities and/or her commander that her condition warranted entry into the PDES.  Therefore, she was not considered by an MEBD.  Without an MEBD, there would have been no basis for referring her to a PEB.  Without a PEB, the applicant could not have been issued a medical discharge or separated/retired for physical disability.

5.  The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare 
the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating.  The Army must find that a Soldier is physically unfit to reasonably perform his/her duties and assign an appropriate disability rating before that Soldier can be medically separated or retired.



6.  With respect to her MSO, the MSO starts on the date of initial enlistment or appointment in the RA to include the DEP.  She enlisted in the DEP on 16 April 2007 for a period of 8 years.  Therefore, her Reserve Obligation Termination date is 15 April 2015, as shown in item 6 of her DD Form 214.

7.  With respect to her educational and veterans benefits, contrary to her assertion that she was misinformed, the evidence of record shows she indicated that she received counseling on Veterans benefits and understood that she must receive an honorable discharge and meet minimum time-in service requirements to be eligible to receive benefits.  She also understood that the VA determines eligibility for benefits.  Since VA benefits are not within the purview of this Board, any questions pertaining to VA benefits should be addressed to that agency.

8.  In order to justify correction of a military record, she must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, there is no basis to grant her the requested relief.

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)                                         AR20090015119



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ABCMR Record of Proceedings (cont)                                         AR20090015119



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