IN THE CASE OF: BOARD DATE: 14 February 2023 DOCKET NUMBER: AR20220007074 APPLICANT REQUESTS: in effect, correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) as follows: * item 18 (Remarks) remove “fot his” and replace with “for her” * item 25 (Separation Authority) remove “Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 8” and replace with “Army Regulation 635-200, chapter 6” or Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4 * item 28 (Narrative Reason for Separation) remove “pregnancy” and replace with “disability” or “hardship” APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 2648 (Preseparation Counseling Checklist), 14 March 2002 * DD Form 214 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. Her DD Form 214 states she was discharged due to pregnancy. She was in fact pregnant and had a complicated pregnancy. In the midst of this, her husband was incarcerated and she had no one to care for her son. She was encouraged to discuss this matter with counselors on base and they provided her with options that would be beneficial for her and her family. b. One option was to give temporary custody of her son to a family member, but at that time no one could care for him. Her husband and son were living off base with her during her Advanced Individual Training (AIT), until her husband went to jail. The other option was to get an honorable discharge and that is the option she chose. c. Since she did not serve for a consecutive 24 months, she is unable to receive military benefits. She is requesting that the reason for choosing to leave the military was hardship or medical, not due to being pregnant. Advise if any documentation is required for this request. d. Additionally, her DD Form 214 at item 18 refers to her as a “his” and not a “her” and the verbiage needs to be revised. Her records are in error because she left the Army due to hardship and medical issues she was facing at the time, not solely due to being pregnant. e. Also, her Preseparation Counseling documents state that she qualifies for education and loan benefits. This is another reason why she did not contest benefits, because that documents clearly states she qualified for those benefits once she left the Army. She has been applying for benefits for a while, but was recently made aware why she has been denied these benefits. Her provided Preseparation Counseling Checklist clearly mark that she qualifies for education and loan benefits. 3. A DD Form 2808 (Report of Medical Examination), dated 19 July 2001, shows the applicant underwent medical examination on the date of the form for the purpose of Regular Army enlistment and was found qualified for service with a physical profile rating of “1” in all factors. 4. The applicant enlisted in the Regular Army on 10 August 2001, for a period of 4 years. 5. The complete facts and circumstances surrounding the applicant’s discharge are unknown, as a copy of her discharge packet, to include her voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 8, for pregnancy is not in her available records for review. 6. The applicant provided a copy of a DD Form 2648, which shows a Preseparation Counseling Checklist was prepared for the applicant on 14 March 2002, wherein she indicated on the form that she was offered preseparation counseling on the date of the form to assist in her transition processing and that she checked those items for which she desired further counseling. a. Among the benefits and services she indicated she desired further counseling on were employment assistance, travel and transportation allowances, education/training, and health and life insurance. b. As stated on the form itself, the purpose of this form is to provide separating service members with basic preseparation information and assistance in developing an Individual Transition Plan (ITP) and counseling based on the areas of interest they identified on the form. The “yes” and “no” checkmarks do not indicate eligibility for benefits and services, but rather they indicate the separating Soldier’s interest in receiving further counseling on these topics. 7. The applicant’s DD Form 214 shows she was honorably discharged after 7 months and 12 days of net active service on 21 March 2002, due to pregnancy, under the provisions of Army Regulation 635-200, chapter 8. Item 18 contains a typographical error showing “fot his” in lieu of the intended “for her.” 8. The applicant’s available service records from this period do not show: * she was issued a permanent physical profile rating * she suffered from a medical condition, physical or mental, that affected her ability to perform the duties required by her MOS and/or grade or rendered her unfit for military service * she was diagnosed with a medical condition that warranted her entry into the Army Physical Disability Evaluation System (PDES) * she was diagnosed with a condition that failed retention standards and/or was unfitting 9. The applicant’s service records do not contain documentation reflective of hardship and the applicant has not provided any such documents. 10. MEDICAL REVIEW: a. The applicant is applying to the ABCMR with multiple requested corrections to her DD214 to include change of a gender pronoun (his to her) and a related typographical error; change in separation authority; and change in narrative reason for separation (remove pregnancy and replace with disability or hardship) b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory are the following: (1) Her DD214 shows she was discharged due to pregnancy. She did in fact have a complicated pregnancy, during which her husband was incarcerated and she had no one to care for her son. She discussed options with counselors on base. One option was to give temporary custody of son to a family member, but no one could take care of him. Her husband and son were living off base with her during AIT until the husband went to jail. The other option was to receive an honorable discharge, which is the option she chose. (2) She asserts errors in DD214 to include a gender pronoun and related typographical error and that she left the army due to hardship and medical issues, not solely due to being pregnant. She also asserts that her pre- separation counseling documents show she was eligible for education and loan benefits, but she was recently made aware why she has been denied these benefits. (3) DD Form 2808 Report of Medical Examination shows she underwent physical examination for purpose of enlistment and was found qualified for service with physical profile rating of 1 on all factors. (4) She enlisted in the RA on 10 August 2001. (5) The complete facts and circumstances surrounding discharge are unknown; a copy of her discharge packet to include her voluntary request for discharge under AR 635-200 Chapter 8 (pregnancy) is not available in her records for review. (6) On her pre-separation counseling checklist prepared 14 March 2002, she indicated desire for further counseling with employment assistance, travel and transportation allowances, education/training and health and life insurance. The “yes” and “no” checkmarks do not indicate eligibility for benefits and services, but rather indicate soldier’s interest in receiving further counseling on those topics. (7) Her DD214 shows she was discharged honorably on 21 March 2002 due to pregnancy under AR 635-200 chapter 8. Item 18 contains a typographical error and an incorrect gender pronoun. (8) Available service records do not show that she was ever placed on a permanent profile, suffered from a medical condition (physical or mental) that rendered her unfit, diagnosed with a condition warranting entry into the Army PDES, or diagnosed with a condition that failed retention standards and/or was unfitting. (9) The applicant’s service records do not contain documentation reflective of hardship and she has provided no such documents. c. Supporting Documents All supporting documents reviewed. Lack of citation or discussion in this section should not be interpreted as lack of consideration. The documents were extensively reviewed in the ROP and are available for the Board members to review. Other than her enlistment Report of Medical Examination, which was unremarkable and found her fit for service, there are no medical or mental health records found within supporting documents. d. AHLTA The Army electronic medical record, AHLTA, was reviewed but was void of any clinical records for applicant. e. JLV Available VA records were reviewed via JLV. Records indicate she has no service- connected conditions. Her records are generally void of information, other than several prescribed medications from her period of service pulled from DOD records. f. Other Query of HAIMS did not return any documents for this applicant. Kurta Questions: 1. Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes, per the applicant’s assertion. 2. Did the condition exist or experience occur during military service? Yes, per the applicant’s assertion only. 3. Does the condition or experience actually excuse or mitigate the discharge? Partial. The applicant asserts hardship and medical issues were contributory to her discharge and requests amendment to her DD214 reflecting same. Under liberal consideration, her assertion alone is worthy of consideration by the Board. After reviewing her statement and records, the BH advisor appreciates what appear to be difficult family circumstances at the time of her Army service. However, there is no compelling evidence to suggest her discharge for pregnancy was inappropriate and/or that the separation authority and narrative reason for separation merit change or amendment. Her request for change of the typographical error and gender pronoun should be granted. ? BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was partially warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. a. The gender pronoun in the Remarks block is clearly in error and should be corrected from “Fot His” to “For Her” b. The applicant asserts hardship and medical issues were contributory to her discharge and requests amendment to her DD Form 214 reflecting same. The Board reviewed and agreed with the medical advisor’s finding although she experienced difficult family circumstances at the time of her Army service, there is no compelling evidence to suggest her discharge for pregnancy was inappropriate and/or that the separation authority and narrative reason for separation merit change or amendment. The applicant provided no evidence of an error or an injustice for the reason she was separated. Based on a preponderance of evidence, the Board determined that the authority and reason for separation the applicant received upon separation were not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 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 deleting the words “Fot His” from the Remarks Block of the DD Form 214 and adding the words “Fort He.r 2. The Board further determined 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 the authority for separation or the narrative reason for separation. 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. REFERENCES: 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 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. 2. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in a Medical Evaluation Board (MEB); when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an Military Occupational Specialty (MOS) Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and Physical Evaluation Board (PEB). The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 3. Army Regulation 635-40 establishes the Army 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. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a. 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 military service. b. Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. c. The percentage assigned to a medical defect or condition is the disability rating. A rating is not assigned until the PEB determines the Soldier is physically unfit for duty. Ratings are assigned from the Department of Veterans Affairs (VA) Schedule for Rating Disabilities (VASRD). The fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness. An unfitting, or ratable condition, is one which renders the Soldier unable to perform the duties of their office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of their employment on active duty. There is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. 4. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 5. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. a. Chapter 6 (Separation Because of Dependency or Hardship) provides that separation under this chapter is for the convenience of the Government. Dependency exists when death or disability of a member of a Soldier’s (or spouse’s) immediate family causes that member to rely upon the Soldier for principal care or support. 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. (1) Parenthood of married Soldiers. A married Soldier who becomes a parent by birth, adoption, or marriage (stepparent) and whose child (or children) is less than 18 years of age and resides 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 the Soldier cannot fulfill his/her military obligation without neglecting the child or children. (2) Sole parents. Soldiers who are sole parents and whose children are under 18 years of age aid 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 who is divorced or legally separated and has been awarded child custody by judicial decree or court order, or who is a widow/widower. (3) Intent. It is not the intent of the Army's policy regarding married Soldiers who are parents or Soldiers who become sole parents, to arbitrarily allow the separation of an enlisted woman who remained in the service during her pregnancy and then requested release immediately after receiving the medical and monetary benefits related to prenatal and postnatal absence and delivery. (4) Supporting evidence. Supporting evidence will be provided; however, soldiers must meet the application criteria in paragraph 6-4 in addition to the requirement that there be unexpected circumstances beyond the Soldier's control justifying separation. An example of unexpected circumstances beyond the Soldier's control is the birth of a child with a serious birth defect requiring constant care. Inability to obtain an approved dependent care plan does not qualify the Soldier for separation under this provision. b. Paragraph 6-4 (Application of criteria) states separation from the-service of Soldiers because of dependency or hardship will be granted when all the following circumstances exist: (1) Conditions have arisen or have been aggravated to an excessive degree since entry on active duty or active duty for training. (2) Conditions are not of a temporary nature. (3) Every reasonable effort has been made by the Soldier to alleviate the dependency or-hardship conditions without success. (4) Separation from active military service of the Soldier is the only readily available means of eliminating or materially alleviating the dependency or hardship conditions. c. Chapter 8 (Separation of Enlisted Women – Pregnancy) establishes policy and procedures and provides authority for voluntary separation of enlisted women because of pregnancy. (1) Examination for pregnancy will be conducted as a complete medical examination. If the Soldier is found to be pregnant no additional medical examination is required before separation if medical examination is accomplished per Army Regulation 40-501 (Standards of Medical Fitness), chapter 8, section Ill, and there is no change in the enlisted woman's medical condition other than her pregnancy. (2) The pregnancy diagnosis will be certified in writing by-a physician on duty at an Armed Forces medical treatment facility as soon as possible. The certificate will be sent to the separation authority as an enclosure to the request for separation if the enlisted woman applies for separation. (3) When pregnancy is the only medical condition upon which separation is based, separation will.be accomplished without a medical or physical evaluation board. If there are medical conditions that disqualify the enlisted woman for retention, processing will be accomplished per Army Regulation 635-40. 6. Title 10, U.S. Code, section 1556 requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. 7. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220007074 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1