IN THE CASE OF:
BOARD DATE: 23 June 2011
DOCKET NUMBER: AR20100029385
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 that her discharge be changed to medical.
2. The applicant states that she requested to leave active duty due to fear of a miscarriage caused by a lack of medical attention during her pregnancy. She states Kimbrough Hospital at Fort Meade, Maryland, was negligent. She was released from the Army when her unborn baby had been dead for 10 to 14 days. A civilian physician's letter substantiates this time of death.
3. The applicant provides a copy of a letter from a civilian medical doctor stating the applicant underwent a normal vaginal delivery of a stillborn fetus on 8 March 1990. According to a pathologist, the baby had died 10 to 14 days earlier.
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 10 June 1988. She completed training as a finance specialist and was assigned to the finance office at Fort Meade.
3. On 26 October 1989, the applicant was counseled concerning separation for pregnancy. She was informed of the conditions under which she could receive military medical care for her pregnancy and post-partum period and that if she chose to remain on active duty, she would be required to be available for worldwide duty and would necessarily have to have a child care plan in place.
4. On 27 January 1990, she requested discharge due to pregnancy. Her request was approved and she was released from active duty on 27 February 1990. She was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete her military service obligation.
5. Army Regulation 635-200 (Personnel Separations), chapter 8, establishes policy and procedures and provides authority for voluntary separation of enlisted women because of pregnancy. This chapter applies to all Active Army enlisted women and Army National Guard and USAR enlisted women ordered to active duty. Chapter 1, section VII, governs whether the Soldier will be released from active duty with transfer to the USAR Individual Ready Reserve or discharged.
6. Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty. It states 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 physical disability incurred or aggravated in service.
DISCUSSION AND CONCLUSIONS:
1. The civilian doctor states the applicant's stillborn baby had been dead 10 to 14 days prior to 8 March 1990, not prior to 27 January 1990 when she requested discharge.
2. There is no available evidence of any improper care by the Army and no available evidence of any permanent medical problem related to that pregnancy that rendered the applicant unfit to perform her duties.
3. There is no documentation to support the applicant's contention and no rationale to support the implied conclusion that those alleged circumstances would warrant the requested relief. 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 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) AR20100029385
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ABCMR Record of Proceedings (cont) AR20100029385
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