IN THE CASE OF:	  

		BOARD DATE:	  16 November 2010

		DOCKET NUMBER:  AR20100012976 


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 narrative reason, reentry eligibility (RE) code, and time in service be changed on her DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states she did not know her staff sergeant major gave her a pregnancy discharge under the provisions of chapter 8 of Army Regulation 
635-200 (Enlisted Personnel Management System).  She states she and several other female Soldiers were made to sign documents they did not fully understand.  She states she and other women in her unit were tricked by the staff sergeant major and she now wants her record corrected.  She states she was married and had other children at the time of her separation and she is still married to the same man.

3.  The applicant provides a copy of her DD Form 214 with a separation date of 4 August 1989.

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 enlisted in the Regular Army on 3 December 1987 for a 3-year period.  She completed her initial entry training and was awarded military occupational specialty 77F (Petroleum Supply Specialist).

3.  Prior to the expiration of her term of service, her company commander counseled her on 21 June 1989 and provided her with the options, entitlements, and responsibilities available to her in connection with her pregnancy.  She was advised of her right to remain in the service or to request separation in accordance with Army Regulation 635-200.  She was told if she remained on active duty, she would receive medical treatment (military or civilian facility).  If she separated, she was only entitled to medical treatment at a military facility.  She was advised she could request ordinary, advanced, and excess leave in order to return home or to another appropriate place for the birth of her child and that absences for postpartum care would be determined by medical doctors.  She was advised she could requisition military maternity uniforms and request military housing with dependents.  She was informed that if her performance or conduct would warrant a separation for unsatisfactory performance or misconduct she could be involuntarily separated even though pregnant.  Lastly, she was told she could be involuntarily separated if her parenthood duties interfered with her military duty performance, that she must provide her unit commander with an approved Family Care Plan, and that if she did not, her inaction could result in a bar to reenlistment.

4.  Under her own handwritten signature, the applicant affirmed her company commander had counseled her and that she had 5 days to make an election.

5.  On 26 June 1989, she affixed her initials to the counseling statement stating she was not coerced and that she elected separation by reason of pregnancy under the provisions of Army Regulation 635-200.

6.  On 10 July 1989, the applicant personally signed a DA Form 4187 (Personnel Action) requesting an immediate separation from the Regular Army under the provisions of chapter 8, Army Regulation 635-200.  She specifically requested that her date of discharge be 25 July 1989.  Her company commander verified the information presented on this DA Form 4187 and recommended her separation.

7.  The appropriate separation authority approved the applicant's request for separation directing the issuance of an honorable discharge.

8.  Orders 161-7 issued by the 178th Personnel Service Company on 21 July 1989 directed her date of release from active duty as 4 August 1989.

9.  Accordingly, the applicant was released from active duty.  She was issued a DD Form 214 confirming she was separated on 4 August 1989.  Her DD Form 214 shows the following entries in item 12 (Record of Service) in year(s), month(s) and day(s) format:

	a.  item 12a (Date Entered Active Duty This Period) "87 12 03,"

	b.  item 12b (Separation Date This Period) "89 08 04,"

	c.  item 12c (Net Active Service This Period) "01 08 02,"

	d.  item 12d (Total Prior Active Service) "00 00 00,"

	e.  item 12e (Total Prior Inactive Service) "00 00 00," and

	f.  item 12f (Foreign Service) "01 01 03,"

10.  In addition, her DD Form 214 contains the following pertinent entries as follows:

	a.  item 23 (Type of Separation) "RELIEF FROM ACTIVE DUTY,"

	b.  item 25 (Separation Authority) "ARMY REGULATION 635-200 CHAPTER 8,"

	c.  item 26 (Separation Code) "MDF,"

	d.  item 27 (Reenlistment Code) "RE 2," and

	e.  item 28 (Narrative Reason for Separation) "PREGNANCY."

11.  References:

	a.  Army Regulation 635-200, chapter 8 (Separation of Enlisted Women for Pregnancy), establishes the policy and procedures for the voluntary separation of enlisted women because of pregnancy.  A pregnant Soldier will be counseled by her unit commander who will use a pregnancy counseling checklist to inform her of her options, entitlements, and responsibilities.   The Soldier will be counseled that she may voluntarily request separation, that her discharge will be characterized as honorable or under honorable conditions, and will be advised of the specific factors within her service record warranting this type discharge characterization.

	b.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It states that the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.

	c.  Army Regulation 635-200 states that prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or the reason for discharge.

	d.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), in effect at the time, provided eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and U.S. Army Reserve.  These RE codes are used for administrative purposes and are not to be considered derogatory in nature.  Simply, the RE codes are used for identification of an enlistment separation processing procedure.  Table 3-6 included a list of the Regular Army RE codes.

		(1)  "RE 1" applied to Soldiers completing their terms of active service who were considered qualified to reenter the U.S. Army.  They were qualified for enlistment if all other criteria were met.

		(2)  "RE 2" applied to Soldiers separated before completing a contractual period of service and whose reenlistment was not contemplated.  Soldiers who received this RE code upon separation were fully qualified for enlistment.

	e.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are used to provide a statistical accounting of the reasons for which active Army personnel are separated from active duty.  SPD codes are not intended to stigmatize an individual in any manner.  The reasons for separating Soldiers from active duty and their corresponding SPD codes will be entered on the Soldiers' DD Forms 214.  In pertinent part, the SPD code of "MDF" identifies Soldiers who are released from active duty under the provisions of Army Regulation 635-200, chapter 8, for pregnancy.

	f.  Army Regulation 635-5 also dictates that the entry code listed in Table 2-2 or Table 2-3 of Army Regulation 635-5-1 shows that the appropriate RE code for the SPD code of "MDF" as "RE 2."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her narrative reason, RE code, and time in service be corrected on her DD Form 214 because she was tricked by her staff sergeant major into separating due to her pregnancy.

2.  Based on the evidence of record, the applicant voluntarily requested separation for pregnancy after her company commander had counseled her as to her rights and entitlements.  The separation approval authority approved her personal request for separation.

3.  As she was separated prior to the expiration of her term of service due to her pregnancy, the only valid narrative reason under the provisions of chapter 8, Army Regulation 635-200 is pregnancy.  The appropriate SPD code is "MDF" and its associated RE code is "RE 2."  An "RE 2" code does provide for the enlistment or reenlistment of prior service Soldiers.

4.  In regards to her contention that her time in service is incorrect, the ABCMR began its consideration of her contentions with the presumption of administrative regularity.  She had the burden of proving and error or an injustice occurred.  She did not provide any evidence to show her dates of service were incorrect.  Her dates of service were established based on official documents filed within her personnel service record.

5.  In view of the above, there is no basis for granting the applicant's 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)                                         AR20100012976



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100012976



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1