MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           01 OCTOBER 2002                  
	DOCKET NUMBER:   AR2002072652

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Ms. Margaret K. Patterson		Member	
	Mr. Arthur a. Omartian		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that her records be corrected to show that she received a hardship discharge.

She states that she wants to change the reason for her separation from convenience of the Army to hardship so that she can be entitled to the benefits of the Montgomery GI Bill (MGIB).  She stated that she paid into the MGIB for        12 months.  She asked to remain in the Army provided she could be transferred to another unit.  She was in a mortuary affairs company and not performing duties in her field.  She was going crazy in that company.  She is trying to apply for college.  She honestly believes it was a hardship because of the [type of] company.   

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant enlisted in the Army for four years on 18 January 1994.  She was trained as an administrative specialist and in May 1994 was assigned as an administrative specialist to a memorial affairs unit in Frankfurt, Germany.

On 24 October 1994 the applicant requested that she be discharged because of pregnancy.  She indicated in her request that she had been counseled and that there was no coercion on the part of the counselor influencing her decision.  

The separation authority approved a recommendation that she be separated for pregnancy and directed that she be transferred to the Individual Ready Reserve (IRR) to complete her military service obligation.  She was released from active duty on 7 December 1994 at Fort Dix, New Jersey, under the provisions of Army Regulation 635-200, chapter 8, because of pregnancy.  The character of her service was honorable.

Prior to her release from active duty, she enlisted in the Pennsylvania Army National Guard for 5 years, 10 months, and 17 days.  She was assigned to the 128th Chemical Company in Philadelphia.

On 5 November 1995 the applicant was reduced to Private E-2 for inefficiency.

On 15 May 1996 the applicant was discharged from the Army National Guard and as a Reserve of the Army because of erroneous enlistment.  Her character of service was “Uncharacterized.”

Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel from active duty.  Chapter 8 establishes policy and procedures, and provides authority for voluntary separation of enlisted women because of pregnancy.  That chapter allows for counseling and assistance by the unit commander, and states in pertinent part that the soldier may request separation and may request a specific separation date.  When pregnancy is the only medical condition upon which separation is based, separation will be accomplished without a medical or physical evaluation board.
 
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.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

There is no evidence, nor has the applicant provided any, to indicate that she suffered a hardship because of her assignment.  There is also no evidence that she was mal-assigned or mal-utilized.  Her release from active duty was a result of her own request, and the characterization of her service was honorable.    Consequently, there is no evidence to show that her separation was in error or unjust and as such there is no basis to correct her record to show that she received a hardship discharge.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 7 December 1994, the date of her release from active duty.  The time for the applicant to file a request for correction of any error or injustice expired on 7 December 1997.

The application is dated 15 April 2002 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.  Prior to reaching this determination the Board looked at the applicant’s entire file.  It was only after all aspects of his case had been considered and it 

had been concluded that there was no basis to recommend a correction of his record that the Board considered the statute of limitations.  Had the Board determined that an error or injustice existed it would have recommended relief in spite of the applicant’s failure to submit his application within the three-year time limit.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__RVO__  __MKP __  __AAO __  CONCUR WITH DETERMINATION

    Carl W. S. Chun
    Director, Army Board for Correction
	                of Military Records

INDEX

CASE ID	AR2002072652	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20021001	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.