IN THE CASE OF:	  

		BOARD DATE:  27 February 2014

		DOCKET NUMBER:  AR20130011372 


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 correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) as follows:

* item 28 (Narrative Reason for Separation) – from "PREGNANCY" to "HARDSHIP"
* item 26 (Separation Code) – from "MDF" to "MDH"

2.  The applicant states:

* she was released due to hardship (family care) not because she became pregnant
* she had no dependent care for her child while overseas
* she was scheduled to go to Cuba 3 months after her due date and her husband was in Korea
* the veterans' center advised her how the error in wording affects her veterans' benefits

3.  The applicant provides a copy of her 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 2 September 1994.

3.  Her DA Form 4187 (Personnel Action) shows:

* she requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 8, due to pregnancy on 23 May 1995,
* her expected delivery date was 9 January 1996
* her requested discharge date was 14 July 1995

4.  On 23 May 1995, she underwent pregnancy counseling and signed a Statement of Counseling acknowledging she had been briefed on her options, entitlements, and responsibilities in connection with her pregnancy.  She indicated she desired separation by reason of pregnancy under the provisions of Army Regulation 635-200, chapter 8, and there was no coercion on the part of the counselor influencing her decision.

5.  On 16 June 1995, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-200, chapter 8, and directed her transfer to the U.S. Army Reserve Individual Ready Reserve.

6.  On 14 July 1995, the applicant was honorably released from active duty under the provisions of Army Regulation 635-200, chapter 8, and transferred to the U.S. Army Reserve Control Group (Annual Training).  Her DD Form 214 shows she completed 10 months and 13 days of creditable active military service.

7.  There is no evidence in the applicant's records and the applicant did not provide any 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.



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

	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 is 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 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 voluntarily separating under Army Regulation 635-200, chapter 8, by reason of pregnancy or childbirth and SPD code MDB is the correct code for Soldier's voluntarily separating under Army Regulation 635-200, chapter 6, by reason of hardship.

DISCUSSION AND CONCLUSIONS:

1.  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 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.

2.  Her narrative reason for separation and corresponding SPD code were assigned based on her voluntary request for separation due to pregnancy.  Absent her 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."

3.  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.

4.  In view of the foregoing, there is no basis for granting the relief she requests.

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)                                         AR20130011372



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ABCMR Record of Proceedings (cont)                                         AR20130011372



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