BOARD DATE:	  10 June 2010

		DOCKET NUMBER:  AR20090021351 


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 her uncharacterized discharged be changed to a medical discharge.

2.  The applicant states she was 6 1/2 months pregnant on her date of discharge.

3.  The applicant provides the following in support of her request:

* DD Form 214 (Certificate of Release or Discharge from Active from Active Duty)
* Birth Certificate
* Social Security Administration Social Security Number Printout
* Wellborn Baptist Hospital Medical Record Document Extracts (3 pages)

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 record shows she enlisted in the Regular Army (RA) and entered active duty on 24 February 1994.  She completed basic combat training at Fort Leonard Wood, Missouri and was reassigned to Fort Jackson, South Carolina on 30 April 1994.

3.  The DA Form 2-1 (Personnel Qualification Record) shows while attending AIT, the applicant was reported absent without leave (AWOL) during the period 10 June through 14 July 1994.

4.  On 21 July 1994, a DD Form 458 (Charge Sheet) preferred a court-martial charge against the applicant for violation of Article 86 (AWOL) of the Uniform Code of Military Justice (UCMJ) from on or about 10 June 1994 through on or about 15 July 1994.

5.  On 21 July 1994, the applicant consulted with legal counsel and 	she was advised of the basis for the contemplated trial by court-martial and maximum permissible punishment authorized under the UCMJ, of the possible effects of an under other than honorable conditions (UOTHC) discharge if her request for discharge was approved, and of the procedures and rights available to her.  Subsequent to receiving this counseling, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of court-martial.

6.  In her discharge request, the applicant acknowledged and/or indicated the following:

a. that by submitting a discharge request, she was guilty of the charge against her or of a lesser included offense therein contained that also authorized the imposition of a bad conduct or dishonorable discharge;

b. under no circumstances did she desire further rehabilitation because she had no desire to perform further military service;

c. she understood if her discharge request were accepted, she could receive a UOTHC discharge and she had been advised of the possible effects of this type of discharge;
d. 
she understood she could be deprived of many or all Army benefits;

e. she could be ineligible for or deprived of many or all benefits administered by the Department Veterans Affairs (VA);

f. she could be deprived of her rights and benefits as a veteran under both Federal and State law; and

g. she understood she could encounter substantial prejudice in civilian life because of a UOTHC discharge.

7.  On 8 November 1994, the separation authority approved the applicant's voluntary request for discharge and directed that she receive an entry level discharge.  On 29 November 1994, the applicant was discharged accordingly.

8.  There are no medical records on file or provided by the applicant that indicate she suffered from a disabling medical condition that would have supported her separation processing through medical channels at the time of her discharge.  

9.  The DD Form 214 issued to the applicant on 29 November 1994 confirms she was discharged under the provisions of Army Regulation 635-200, Army Regulation 635-200 by reason of “in lieu of trial by court martial.”  It also confirms she completed 8 months and 1 day of creditable active service with 131 days of time lost.

10.  The applicant provides 3 pages of medical documents confirming she was pregnant at the time of her discharge from active duty.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the 
individual's admission of guilt.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (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 or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the PDES.  

13.  Army Regulation 40-501 (Standards of Medical Fitness) provides, in pertinent part, the medical fitness standards for retention and separation, including retirement.  Paragraph 7-9d(7) states that upon the diagnosis of pregnancy, the Soldier is exempt from regular unit physical fitness training and Army Physical Fitness Testing (APFT)/weight standards for the duration of the pregnancy and 180 days past pregnancy termination.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that she should have received a medical discharge at the time of her discharge from active duty based on being pregnant at the time was carefully considered.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize her rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The medical evidence provided in this case confirms the applicant was pregnant at the time of her discharge.  However, her record is void of any medical records or any other documents that indicate she suffered from a mental or physically disqualifying condition at the time of her discharge processing.

4.  In addition, by regulation, a Soldier’s maximum physical performance is officially limited by pregnancy; however, this condition does not within itself render a Soldiers unfitting for further military service.  Therefore, upon a diagnosis of pregnancy, a Soldier may continue her military service.

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.

6.  In view of the above, the applicant’s request should be denied.


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)                                         AR20090021351





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ABCMR Record of Proceedings (cont)                                         AR20090021351



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