IN THE CASE OF:
BOARD DATE: 8 January 2015
DOCKET NUMBER: AR20140008005
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 items 26 (Separation Authority) and 28 (Narrative Reason for Separation) of her DD Form 214 (Certificate of Release or Discharge from Active Duty).
2. The applicant states:
* her reason for separation is incorrect
* her DD Form 214 shows the separation authority as chapter 8 and the narrative reason as pregnancy
* it was a hardship discharge
* she had an emergency delivery of her son on 7 October 1995
* her son died on 23 October 1995 after disconnecting life support
* she could not return to active duty and was discharged for hardship
* she was not pregnant on 15 December 1995
* she realizes it has been 19 years, but this is the first time she has used her DD Form 214 for Department of Veterans Affairs benefits
3. The applicant provides:
* her son's birth certificate and death certificate
* 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 February 1994 for 3 years. She completed her training and was awarded military occupational specialty 63B (light wheel vehicle mechanic).
3. She provided documentation which shows her son was born prematurely on 7 October 1995 and he died on 23 October 1995.
4. Her records are void of the specific facts and circumstances surrounding her discharge action; however, her DD Form 214 shows she was released from active duty by reason of pregnancy on 15 December 1995 under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 8.
5. Her DD Form 214 shows in:
* item 25 (Separation Authority) Army Regulation 635-200, Chapter 8
* item 26 (Separation Code) MDF
* item 28 Pregnancy
6. There is no evidence the applicant requested a hardship discharge.
7. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 8 of the version in effect at the time provided the authority for voluntary separation of enlisted women because of pregnancy. The regulation stated in circumstances of an abnormal pregnancy course, when a Soldier carried a pregnancy for 16 weeks or more, but then had an abortion, miscarriage, or an immature or premature delivery before separation was accomplished, the Soldier would have the option to be retained or be separated under this chapter. The duration of time she carried the pregnancy was defined as starting approximately at conception and ending when the products of conception were delivered or considered disappeared. A medical officer must verify the duration of the pregnancy. The Soldier would be counseled concerning her options. If she chose to separate, the separation authority might set the separation date. The Soldier's decision would be recorded as a signed statement and included in the records.
8. Army Regulation 635-5-1 (Separation Program Designator (SPD)) Codes), in effect at the time, provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It stated that SPD code MDF was the appropriate code to assign to Soldiers being separated under the provisions of Army Regulation 635-200, chapter 8, by reason of pregnancy.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends her narrative reason for separation is incorrect and should be changed to hardship.
2. There is no evidence of record and the applicant provided no evidence which shows she requested a hardship discharge.
3. The evidence of record supports her contention that she was not pregnant on 15 December 1995, the date of her separation. The evidence confirms she delivered a son prematurely on 7 October 1995 and he died on 25 October 1995. However, chapter 8 of Army Regulation 635-200 provided for voluntary separation of enlisted women because of pregnancy, including premature delivery before separation was accomplished.
4. In the absence of evidence to the contrary, it must be presumed that the applicant's separation processing was administratively correct and in conformance with applicable regulations. Without the discharge packet to consider, it is presumed the narrative reason for separation was administratively correct and in conformance with applicable regulations at the time of her separation. Therefore, there is no basis for amending item 28 of her DD Form 214.
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) AR20140008005
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ABCMR Record of Proceedings (cont) AR20140008005
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