BOARD DATE: 3 August 2017 DOCKET NUMBER: AR20160000498 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ___x_____ ___x_____ ___x__ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 3 August 2017 DOCKET NUMBER: AR20160000498 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending her DD Form 214 as follows: a. deleting from item 24 the current entry and replacing it with "UNCHARACTERIZED"; b. deleting from item 28 the current entry and replacing it with "ENTRY LEVEL STATUS PERFORMANCE–PREGNANCY” 2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to changing her character of service to honorable. ___________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. BOARD DATE: 3 August 2017 DOCKET NUMBER: AR20160000498 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, in effect, correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show a character of service of honorable, vice "ENTRY LEVEL STATUS." 2. The applicant states she was given an "entry level status performance and conduct" pregnancy discharge. a. She completed initial entry training and was awarded military occupational specialty (MOS) 71L (Administrative Specialist). She asserts she should not have been given a performance and conduct discharge. She was told the reason for her separation was pregnancy and not due to substandard performance. b. She reviewed her personnel records in 2015 and realized she had been given a bad discharge. She is an honest and hard worker, as well as being a mother. She does not agree with this discharge. She is asking the Board to review her records. She went through basic combat training (BCT) and advanced individual training (AIT) while pregnant. She received no disciplinary actions while in training. She accepts she was discharged due to pregnancy, but contends her character of service should be honorable and the narrative reason for separation should simply show "Pregnancy" instead of "Entry Level Status Performance and Conduct – Pregnancy." 3. The applicant provides her DD Form 214, ending 6 June 1983, and a DA Form 5181-R (Test) (Record of Acute Medical Care), dated 18 April 1983. 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 13 January 1983. 3. Her available service record includes the following documents: a. DA Form 3349 (Physical Profile Board Proceedings), dated 26 April 1983, shows she was given a physical profile of "T3" (temporary – level 3 (significant limitations)) for the functional capacity factor of "P" (Physical Capacity or Stamina). Item 7 (Physical Defects) states "Pregnancy, EDC (estimated date of confinement, i.e. due date) – 16 Dec 83." An Army doctor signed the profile. b. Four DA Forms 4856-R (General Counseling Forms): (1) 25 May 1983 – The counselor (Staff Sergeant DM) rated her "Good" for all categories except for a "Fair" rating in "Mastery of Training Skills." Item 9 (Date and Summary of Counseling) stated the applicant was dropped from the 71L course and the counselor did not recommend further training in another MOS because she was pregnant; discharge was recommended. The applicant concurred with the counseling. (2) 25 May 1983 – The counselor (Sergeant First Class CB) rated her as "Good" for all rated items except for a "Poor" rating in "Mastery of Training Skills." The counselor recommended discharge for pregnancy; the applicant concurred with the counseling. (3) 25 May 1983 – First Lieutenant DLC, her unit commander, counseled the applicant and rated her as "Excellent" in the categories of appearance and attentiveness; "Good" for conduct, military courtesy, motivation, and mastery of training skills. He rated her as "Fair" for physical fitness. Item 9 indicated she had been dropped from the 71L course after it was determined she was pregnant. She had a good attitude and expressed a desire to return to active duty after 2 or 3 years. The applicant concurred with the counseling. (4) 26 May 1983 – E-8 FRG rated her "Good" for appearance, conduct, and military courtesy; she received a "Fair" rating for motivation, self-discipline, and physical fitness. Item 9 stated the applicant was dropped from the 71L course due to failing the end of course test. The counselor indicated the applicant was pregnant and would not be able to complete training in another MOS-producing school. The counselor recommended discharge; the applicant concurred with the counseling. 4. On 27 May 1983, her commander advised her in writing he was initiating separation action under the provisions of chapter 11 (Entry-Level Performance and Conduct (Trainee Discharge Program)), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) because she was pregnant and could not complete necessary training. He further informed her, if approved, she would receive an entry-level separation. 5. She was advised of her rights and elected to waive her right to consulting counsel and to submit statements in her own behalf. 6. On 1 June 1983, the separation authority approved the commander's recommendation for separation and directed her character of service be shown as "uncharacterized." 7. She was discharged on 6 June 1983. Her DD Form 214 shows she completed 4 months and 24 days (144 days total) of net active service. Her DD Form 214 also shows in: * item 24 (Character of Service) – "ENTRY LEVEL STATUS" * item 25 (Separation Authority) – “AR 635-200, PARA 11-3B” * item 26 (Separation Code (SPD)) – JGA (JET) * item 28 (Narrative Reason for Separation) – “ENTRY LEVEL STATUS PERFORMANCE AND CONDUCT–PREGNANCY” 8. The applicant provides a DA Form 5181-R (Test), dated 18 April 1983, that essentially states she was seen for stomach cramps, nausea, and vomiting. The applicant stated she knew she was pregnant. The assessment indicated "rule out pregnancy" (i.e. continue evaluation to determine if actually pregnant). REFERENCES: 1. AR 635-200, in effect at the time, set forth the basic authority for the separation of active duty enlisted personnel. a. Chapter 3 (Characterization of Service/Description of Separation) states the policies with regard to how characterization of service is determined. When the Soldier is in an entry-level status, the uncharacterized character of service is warranted. In cases where the person is separated prior to their expiration term of service (ETS), the award of an honorable discharge is discretionary. The Secretary of the Army can, on a case-by-case basis, determine if an honorable character of service is warranted by unusual circumstances involving personal conduct or performance of duty. b. Chapter 8 (Separation of Enlisted Women - Pregnancy) stated enlisted women could be voluntarily separated under this chapter. If the Soldier was still in an entry-level status, she would receive an entry-level separation. c. Chapter 11 applied to Soldiers in an entry-level status who were separated due to unsatisfactory performance or conduct (or both). (1) When separation of a Soldier in an entry-level status was warranted by unsatisfactory performance or minor disciplinary infraction, as evidence by inability, a lack of reasonable effort, or failure to adapt to the military environment. (2) This chapter applied to Soldiers who voluntarily enlisted in the Regular Army and had completed no more than 180 days on their current enlistment by the date of separation. (3) Paragraph 11-3b stated, during initial or advanced training, the training commander with separation authority, following coordination with an obstetrician, could involuntarily separate enlisted women who were unable to fully participate in training because of physical condition. Those enlisted women who were able to fully participate could be retained, unless they requested discharge under the provisions of chapter 8. The type of separation was to be entry-level, i.e. uncharacterized. 2. AR 635-5-1 (Personnel Separations – SPD), in effect at the time, listed SPD and narrative reasons for separation. For separations under paragraphs 11-3a or b, AR 635-200, the SPD was "JGA (JET)" for entry-level status performance and conduct or entry-level status performance – pregnancy. 3. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The evidence of record confirms the applicant was determined to be pregnant while in AIT and, based on this condition, her commander initiated separation action. 2. Because this condition was identified and she was separated within her first 180 days of service, the applicant's discharge was, by regulation, required to show an uncharacterized character of service.” Item 24 of her DD Form 214 incorrectly reflects her character of service as "ENTRY LEVEL STATUS" vice "UNCHARACTERIZED." 3. The applicant was discharged under the provisions of AR 635-200, paragraph 11-3b, due to her pregnancy and not being able to complete necessary training. As such, the narrative reason for separation per this paragraph is "ENTRY LEVEL STATUS PERFORMANCE–PREGNANCY” with assignment of SPD code JGA (JET). Her DD Form 214 reflects the incorrect narrative reason for separation. 4. The applicant is advised an uncharacterized discharge is not meant to be a negative reflection of a Soldier’s military service. It merely means that the Soldier had not been in the Army long enough for his or her character of service to be rated as honorable or otherwise. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000498 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000498 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2