IN THE CASE OF:	  

		BOARD DATE:	  14 July 2011

		DOCKET NUMBER:  AR20110000203 


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 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be reissued to show in block 11c (Reason and Authority) that she was discharged under the provisions of Army Regulation 635-200, Chapter 5, due to the convenience of the government and that Separation Program Number (SPN) 221 be removed from her DD Form 214. 

2.  The applicant states, in effect, that she was discharged for pregnancy on 9 October 1970; however, she had an abortion on 3 or 4 August 1970 and she informed her superiors that she was no longer pregnant.  She states that she also informed the medical personnel who performed her examination at the time of discharge that she had an abortion and she was no longer pregnant; but she was still discharged for pregnancy.  She goes on to state that during her enlistment she was emotionally involved and dating a serviceman when she became pregnant by a civilian.  She further states that her boyfriend arranged the abortion, coerced her into having the abortion and had a friend initiate the paperwork for a pregnancy discharge.  She continues by stating that she and her boyfriend were discharged the same day and she ultimately married him and had a child with him.  She divorced him in August 1980 because he was an alcoholic, manipulative, and controlling.  She continues by stating that she has been diagnosed with Post-Traumatic Stress Disorder (PTSD) due to issues with her military service, discharge, and marriage.  She also states that she has a claim for service-connected disability with the Department of Veterans Affairs (VA).  Additionally, she states that her service medical records contain numerous entries showing that she informed officials of her abortion and that she was not pregnant.  However, she was inexperienced at the time and did not receive a proper physical or counseling at the time.  Accordingly, she wants the error corrected at this time. 

3.  The applicant provides a copy of her DD Form 214, her discharge order, and copies of documents from her medical records.

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 Women’s Army Corp (WAC) of the Regular Army on 28 November 1969, at age 20, for a period of 3 years, and training as a dental specialist.

3.  She completed basic training at Fort McClellan, Alabama and advanced individual training at Fort Sam Houston, Texas before being transferred to the WAC Company at Valley Forge General Hospital in Phoenixville, Pennsylvania on 27 May 1970.

4.  The medical records that the applicant provided show that she had an abortion in early August 1970 at 3 months of gestation.

5.  On 30 September 1970, the applicant’s commander (a female first lieutenant) initiated action to discharge the applicant from the service under the provisions of Army Regulation 635-200, paragraph 8-8a(2).  She also indicated the applicant had been advised of her rights, privileges, and benefits as a result of her service.

6.  The applicant’s discharge was approved on 2 October 1970 and the approval authority directed that she be furnished an Honorable Discharge Certificate.

7.  Accordingly, on 9 October 1970, she was honorably discharged under the provisions of Army Regulation 635-200, chapter 8 due to pregnancy and assigned SPN 221 based on her reason and authority for discharge.  She had served 10 months and 12 days of active service.  There is no evidence in the available records to show that the applicant made any attempt to remain on active duty.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 8 of the regulation in effect at the time contained the authority and outlined the procedures for discharging enlisted women for marriage, pregnancy or parenthood.  Section III (Pregnancy) of the regulation in effect at the time provided in paragraph 8-8 that discharge would be accomplished at the earliest possible date when:

   a.  It has been determined by a physician on duty at an Armed Forces medical treatment facility that an enlisted women was pregnant.
   
   b.  It has been determined by a physician on duty at an Armed Forces medical treatment facility that an enlisted women had been pregnant at any time during the present enlistment.

9.  That regulation also provided that if a legitimate pregnancy was terminated without a life issue prior to the effective date of discharge or the child died prior to the effective date of discharge, the enlisted woman may request a waiver of discharge in order to be retained on active duty.  The request for waiver must have been forwarded through channels to the Department of the Army for final determination and must have contained the enlisted woman’s conduct and efficiency ratings, the WAC unit officer’s recommendation, and the circumstances involved. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that she was improperly discharged because of pregnancy has been noted and found to lack merit.

2.  The regulation in effect at the time provided for the separation of enlisted women for pregnancy who were at the time or had been pregnant during their current enlistment.  The applicant admitted that she had been pregnant and had an abortion which required that separation proceedings be initiated.  There is no evidence to show that she requested to be retained on active duty.

3.  Therefore, it appears that the applicant’s administrative separation was accomplished in compliance with applicable regulations with no procedural errors, which would have jeopardized her rights.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.
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)                                         AR20110000203



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ABCMR Record of Proceedings (cont)                                         AR20110000203



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