BOARD DATE: 25 July 2017 DOCKET NUMBER: AR20160001354 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING _____x___ ___x_____ ___x_____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 25 July 2017 DOCKET NUMBER: AR20160001354 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. BOARD DATE: 25 July 2017 DOCKET NUMBER: AR20160001354 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 item 28 (Narrative Reason for Separation) of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show she was released due to "Pregnancy, a condition which interfered with duty." 2. The applicant states she feels the absence of an appropriate narrative reason for separation is unjust because it is preventing her from getting a Department of Veterans Affairs (VA) Home Loan Certificate of Eligibility. She states she was released early due to her pregnancy interfering with her military duties. 3. The applicant provides 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. On 17 February 1993, the applicant enlisted in the Regular Army. After initial entry training, she was awarded military occupational specialty 51B (Carpenter and Masonry Specialist). 3. A statement from Obstetrics and Gynecology Services at Fort Benning, GA, dated 11 October 1994, shows she was registered as a patient in the Obstetrics and Gynecology Clinic due to her pregnancy status since 18 July 1994. 4. She was issued a temporary physical profile rating due to her pregnancy and indicated her expected delivery date as on or about 23 February 1995. 5. On 11 October 1994, she completed a pregnancy counseling checklist. She indicated she received counseling from her unit commander using the pregnancy counseling checklist. The unit commander explained that the purpose of the counseling was to provide information concerning options, entitlements, and responsibilities, and that she may remain on active duty. She was also counseled about the responsibilities and care she may receive if she elected to be separated from the Army due to her pregnancy. In addition, she acknowledged that there was no coercion on the part of the counselor influencing her decision to separate. 6. On 20 October 1994, the applicant submitted a DA Form 4187 (Personnel Action), voluntarily requesting separation from active duty due to pregnancy; however, she requested a desire to remain on active duty until 24 January 1995. Her company commander recommended approval. 7. The applicant's intermediate commander recommended approval of her voluntary request for separation and cited the specific reason for initiation of separation proceedings was that due to her pregnancy, she felt she would be unable to properly raise a family. 8. On 24 October 1994, the separation authority approved the applicant's request under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 8, by reason of pregnancy. The separation authority directed characterization of the applicant's service as honorable and her transfer to the Individual Ready Reserve for completion of her Reserve obligation. 9. On 24 January 1995, she was released from active duty and transferred to the U.S. Army Reserve Control Group (Annual Training) for completion of her Reserve obligation. 10. Her DD Form 214 shows she was separated under the provisions of Army Regulation 635-200, chapter 8. She completed 1 year, 11 months, and 8 days of creditable active service. Her narrative reason for separation is shown as "PREGNANCY" and she was assigned the separation program designator of "MDF." 11. There is no indication in her records that she suffered an injury or illness due to her pregnancy that would have warranted her entry into the Physical Disability Evaluation System. Also, her records do not indicate she was issued a permanent physical profile that affected her duty performance, or that she underwent a medical evaluation board or a physical evaluation board. REFERENCES: 1. 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 she might be pregnant, to report for diagnosis by a physician at the servicing military medical treatment facility. When service medical authorities determine 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. b. 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. 2. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. a. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness). If the medical evaluation board determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board. b. Paragraph 3-2b states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. 3. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), in effect at the time, stated SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty. The primary purpose of SPD codes is to provide statistical accounting of reasons for separation. They are intended exclusively for the internal use of the Department of Defense and the Military Services to assist in the collection and analysis of separation data. The SPD code "MDF" is the appropriate code to assign to Soldiers voluntarily separated under the provisions of Army Regulation 635-200, chapter 8, by reason of "Pregnancy." There was no provision for specifying duty limitations. The current version of this regulation now prescribes the narrative reason for separation as "Pregnancy or Childbirth." The current version also has no provision for specifying duty limitations. DISCUSSION: 1. The evidence of record shows the applicant became pregnant and, as required by regulation, underwent pregnancy counseling. She voluntarily elected separation from the Army and indicated during the counseling session 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. 2. Her narrative reason for separation and corresponding SPD code were assigned based on her voluntary request for separation due to pregnancy. Neither the regulation in effect at the time of her separation nor the current regulation provide for specifying duty limitations associated with pregnancy. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001354 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001354 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2