IN THE CASE OF:	  

		BOARD DATE:	    15 March 2010

		DOCKET NUMBER:  AR20100018764 


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 her DD Form 214 (Certificate of Release or Discharge from Active Duty) by changing:

	a.  block 12b (Separation Date This Period) to show "87 12 03" [3 December 1987] or later; and

	b.  block 12c (Net Active Service This Period) to show at least "02 00 00"
[2 years];

2.  She states that in March 2010 she discovered that the discharge she was given from the military was involuntary because she was not told that she had a choice to remain in the Army.  She also states she comes from a long line of military family members including her father, brother, and three uncles; therefore, her chances of retiring were just as great as theirs.  She researched military policies on discharges and found that in 1975, the Department of Defense (DoD) mandated the end of involuntary separations due to pregnancy or parenthood.

3.  She further states that at the time of her separation, she completed a Statement of Counseling, but she did not have legal advice.  She attests her commander basically led her to believe that she had to sign the document because she was pregnant.  She was told the form was just a preliminary and didn't mean much.  At the time she was in her twenties, married to another service member, and had no clue what her other options could have been so, she signed the form without thinking about future ramifications.

4.  She contends the only reason she did not complete her term of enlistment was because she did not know she had a choice and that if she had been treated fairly, she would still be in the service.  Instead, she is not entitled to any military benefits because she did not serve on active duty for at least 24 months.  Since her separation, she has been an outstanding citizen who desires nothing more than to live in this country.

5.  She provides:

* a self-authored statement
* 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 enlisted in the Regular Army on 4 December 1985.

3.  On 21 July 1986, she signed a Statement of Counseling, wherein she affirmed she had been counseled by her commander on 18 July, on all items on the attached counseling checklist and that she understood her entitlements and responsibilities.  She understood her rights and entitlements if she elected separation.  She also understood that if she should remain on active duty, she would be expected to fulfill the terms of her enlistment contract.  If she elected to remain on active duty, she further understood that she must remain available for unrestricted service on a worldwide basis when directed and that she would be afforded no special consideration in duty assignments or duty stations based on her status as a parent.

4.  On 21 July 1986, her commander provided her a DA Form 2496 (Disposition Form) requesting her election to either separate for reason of pregnancy per Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Chapter 8 (Separation of Enlisted Women - Pregnancy) or to remain on active duty to fulfill the terms of her enlistment contract.

5.  On 21 July 1986, she signed a DA Form 2496, wherein she acknowledged that during the counseling session, there was no coercion on the part of the counselor influencing her decisions.  She also elected separation for reason of pregnancy per Army Regulation 635-200, Chapter 8.  She indicated she desired to remain on active duty until 28 January 1986 [probably intended to be 1987].

6.  On 27 August 1986, she submitted a DA Form 4187 (Personnel Action) voluntarily requesting to be discharged under the provisions of Army Regulation 635-200, Chapter 8 on 28 January 1987.

7.  A DA Form 2496, dated 9 September 1986, shows her commander counseled her on her options, entitlements, and responsibilities in connection with her pregnancy.  She authenticated this form with her signature affirming she had been counseled by her commander on this date on all the items on the counseling checklist and she understood her entitlements and responsibilities.  Retention or separation was among the subjects covered.

8.  Her discharge request was approved by the appropriate authority on            19 September 1986.

9.  Orders 262-651 issued by Headquarters, Fort Carson and Headquarters, 4th Infantry Division (Mechanized), Fort Carson, CO on 11 December 1986 show she was to be relieved from active duty on 28 January 1987 and transferred to U.S. Army Reserve (USAR) Control Group (Annual Training) for the remainder of her service obligation.

10.  Her DD Form 214 contains the following pertinent information:

* Block 12b - she was released from active duty on 28 January 1987
* Block 12c - she completed 1 year, 1 month, and 25 days of active service
* Block 12d (Total Prior Active Service) contains the entry "00 00 00" Block 23 (Type of Separation) - Relief from Active Duty
* Block 24 (Character of Service) - Honorable
* Block 25 (Separation Authority) - Army Regulation 635-200, Chapter 8
* Block 26 (Separation Code) - MDF
* Block 27 (Reenlistment Code) - RE-2
* Block 28 (Narrative Reason for Separation) - Pregnancy

11.  Orders D-12-300884 issued by USAR Personnel Center, St. Louis, MO on 7 December 1993 show she was honorably discharged from the USAR on          7 December 1993.

12.  Chapter 8 of Army Regulation 635-200, in effect at the time, established the policy, procedures, and authority for voluntary separation of enlisted women because of pregnancy.  If an enlisted woman became pregnant she would be counseled by the unit commander using the Pregnancy Counseling Checklist provided in the regulation.  The commander would explain that the purpose of the counseling was to provide information concerning options, entitlements, and responsibilities and that she may:

	a.  Upon request, be separated per this chapter.  She may request a specific separation date not later than 30 days before the expected date of delivery.

	b.  Remain on active duty.

13.  Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It also established the standardized policy for preparing and distributing the DD Form 214.  In pertinent part, it states

	a.  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;

	b.  the Soldier's transition date will be entered in block 12b; and

	c.  amount of service this period, computed by subtracting block 12a from 12b will be entered in Block 12c.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her DD Form 214 should be corrected by:

	a.  changing block 12b to show she was separated on or after 3 December 1987;

	b.  changing block 12c to show she served on active duty for a period of at least 2 years;

2.  She also contends her request should be approved because she was not properly counseled and was led to believe that separation was her only choice.

3.  These contentions were carefully considered and determined to lack merit.

4.  Evidence clearly shows she was thoroughly counseled in accordance with Army policy.  She authenticated several documents affirming that she had been counseled on all items on the Pregnancy Counseling Checklist and that she fully understood her rights, to include the right to remain on active duty.

5.  On 27 August 1986, she submitted a DA Form 4187 voluntarily requesting to be discharged under the provisions of Army Regulation 635-200, Chapter 8 on 28 January 1987.  As a result, she was relieved from active duty on 28 January 1987 and transferred to USAR Control Group (Annual Training) for the remainder of her obligation.  

6.  In view of the foregoing, it would be inappropriate to modify her DD Form 214 to show she had additional active duty service.

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)                                         AR20100018764





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ABCMR Record of Proceedings (cont)                                         AR20100018764



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