IN THE CASE OF:	  

		BOARD DATE:	  11 January 2011

		DOCKET NUMBER:  AR20100016987 


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 overseas tour in Korea be listed as a hardship tour.  (She may, however, be requesting correction to the narrative reason for separation shown on her DD Form 214 (Certificate of Release or Discharge from Active Duty) from "pregnancy" to "hardship.")

2.  The applicant states she was unaware of her entitlement to any benefits from the Department of Veterans Affairs by virtue of her hardship tour.

3.  The applicant provides a DD Form 214.

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 records show she enlisted in the Regular Army for a period of 4 years on 28 September 1981 and held military occupational specialty 72G (Automated Data Communications Switching Center Specialist).  The highest rank/grade she attained during this period of military service was private first class/E-3.

3.  Her records show she served in Korea from 17 January 1983 to 10 June 1983.  She was assigned to the 32nd Signal Company, 41st Signal Battalion.

4.  On 13 May 1983, 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. 
During the counseling session, she indicated she desired separation by reason of pregnancy per chapter 8 of Army Regulation 635-200 (Personnel Separations) and that there was no coercion on the part of the counselor influencing her decision.

5.  She subsequently requested separation under the provisions of chapter 8 of Army Regulation 635-200 by reason of pregnancy and indicated if her request for separation were approved it would be for her own convenience.

6.  On 16 May 1983, the separation authority approved the applicant's separation under the provisions of chapter 8 of Army Regulation 635-200 by reason of pregnancy and directed her service be characterized as honorable.  Accordingly, the applicant was discharged on 13 June 1983.

7.  Her DD Form 214 confirms she was discharged under the provisions of chapter 8 of Army Regulation 635-200 with a narrative reason of separation as "pregnancy" and a separation code of "MDF."  This form further confirms she completed a total of 1 year, 7 months, and 7 days of creditable military service of which 4 months and 24 days were foreign service.

8.  Army Regulation 635-200 provides for the separation of enlisted personnel as follows:

	a.  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 Armed Forces medical treatment facility. 
When service medical authorities determine that 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.

	b.  Chapter 6 governs separation because of dependency or hardship.  It states that a hardship exists when in circumstances not involving death or disability of a member of the Soldier's (or spouse's) immediate family, separation from the service will materially affect the care or support of the family by alleviating undue and genuine hardship.  Paragraph 6-3b(1) provides that a married Soldier who becomes a parent by birth, adoption, or marriage (stepparent), and whose child or children under 18 years of age reside within the household, may apply for separation under hardship.  The Soldier must submit evidence that the roles of parent and Soldier are incompatible and that they cannot fulfill his or her military obligation without neglecting the child or children.  Paragraph 6-3b(2) provides that Soldiers who are sole parents and whose children under 18 years of age reside within the household may apply for separation under hardship.  A "sole parent" is defined as a parent who is single by reason of never having been married or is divorced or legally separated and has been awarded child custody by judicial decree or court order or is a widow or widower.

9.  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 SPD code MDF is the correct code for Soldiers separating (voluntary) under chapter 8 of Army Regulation 635-200 by reason of pregnancy or childbirth and SPD code MDB is the correct code for Soldier's separating (voluntary) under chapter 6 of Army Regulation 635-200 by reason of hardship.

10.  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 his or her military service.  It is important that information entered on the form be complete and accurate.  Chapter 2 contains guidance on the preparation of the DD Form 214.  It states the total amount of foreign service completed during the period covered by the DD Form 214 is entered in item 12f and is obtained from the Soldier's records.  Additionally, the current version of the regulation states that for an active duty Soldier deployed with his or her unit during their continuous period of active service, the statement "SERVICE IN (Name of Country Deployed) FROM (inclusive dates for example, YYYYMMDD-YYYYMMDD)" will be entered in item 18 (Remarks).

11.  A review of her records indicates her entitlement to an additional award which is not shown on her DD Form 214.

12.  Army Regulation 600-8-22 (Military Awards) states that the Korea Defense Service Medal is authorized for award to members of the Armed Forces of the United States who served on active duty in support of the defense of the Republic of Korea.  The area of eligibility encompasses all land area of the Republic of Korea and the contiguous water out to 12 nautical miles and all air spaces above the land and water area.  The period of eligibility is from 28 July 1954 to a date to be determined by the Secretary of Defense.  Service members must have been assigned, attached, or mobilized to units operating in the area of eligibility for 30 consecutive or for 60 nonconsecutive days.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her overseas tour in Korea should be listed as a hardship tour.  However, a request for correction to the narrative reason for separation shown on her DD Form 214 from "pregnancy" to "hardship" was also considered.

2.  The evidence of record shows the applicant became pregnant and underwent pregnancy counseling as required by the applicable regulation.  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 the applicant's 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" and the corresponding SPD code is "MDF."

4.  There is no evidence in the applicant's records and the applicant did not provide substantiating evidence that shows she was undergoing a family hardship or that she reported such hardship to her chain of command or solicited help from the support channels available at her installation.  Furthermore, there is no evidence the applicant voluntarily requested separation for hardship.

5.  The evidence of record shows she served in Korea from 17 January 1983 to 10 June 1983.  This period of foreign service is captured in item 12f of her DD Form 214.  There is no provision in the regulation to list the specific country of foreign service in item 12f.

6.  The current version of the regulation states that for an active duty Soldier deployed with his or her unit during their continuous period of active service, a statement of the country of deployment (locations authorized hostile fire/imminent danger pay and inclusive dates is listed in the remarks block of the DD Form 214. 
The applicant in this case did not serve in a hostile fire/imminent danger pay area.

7.  Nevertheless, her service in Korea from 17 January 1983 to 10 June 1983 qualifies her for award of the Korea Defense Service Medal.  Therefore, she is entitled to correction of her records to show this award.

8.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  However, the applicant may use this Record of Proceedings to support her claim to foreign service in Korea.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending her DD Form 214 by adding the Korea Defense Service Medal.

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to correcting her DD Form 214 to show she was separated by reason of hardship or to include a specific entry showing her foreign service was served in Korea.



      ______________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)                                         AR20100016987



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ABCMR Record of Proceedings (cont)                                         AR20100016987



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