Getting chaptered for 2nd failed apft but I was pregnant at the time. How do I go about this situation?

PV2 Private RallyPoint Member — Mon, 28 Jan 2019 17:29:18 -0500

I am being chaptered out for 2 failed APFT.
My second APFT soon after I found out I was pregnant. By regulation if your primary care provider can prove that you were pregnant during your APFT then it does not count and is erroneous.

I disagreed to my involuntary sep counseling and stated the regulation. I then went to IG who consulted legal and I was told by IG that the chapter 13 is invalid because my second apft should not count. IG can only advise my commander not make him do anything. IG advised my commander that the chapter would not go through if he continued with separation. My commander is still acting as if I am being chaptered. I have not started anything for my separation process but they are already counting me as a loss and very certain I will he kicked out soon. I have been to 1 SFLTAP class and that is all. He is telling my NCO’s I will be out by March but I have not been read my chapter 13, I work in the S-1 shop and it has not been signed by my battalion commander at all.

I would like to know my status but I don’t want to come off as disrespectful.
My NCO’s are too scared so ask my commander and 1SG and everytime I ask, they believe I am being disrespectful for questioning them but I am not I’m honestly just trying to figure out what is my status.

How do they know I will be out by March? I haven’t started any separation process. If I do not agree shouldn’t it take longer because there will be a trial?
What do I do in this situation? I honestly believe my failure was due to my pregnancy I was horribly sick and threw up right before my test but I was determined to take it and pass but my stomach was just so upset. Which is why I decided to take a test after because I don’t get sick.

I have now put a target on my back solely because I’ve been standing up for myself in the most respectful way possible by providing facts and regulation, but I think I’ve made my leadership dislike me even more, I am now on staff duty every weekend and targeted for every horrible detail, so coming to work is an embarrassment and hard for me but I do it everyday, and just try to keep my head up.

Response by SFC Private RallyPoint Member made Jan 28 at 2019 6:17 PM

SFC Private RallyPoint Member — Mon, 28 Jan 2019 18:17:01 -0500

If you haven't seen JAG you need to go asap.

Response by 1SG Private RallyPoint Member made Jan 28 at 2019 10:27 PM

1SG Private RallyPoint Member — Mon, 28 Jan 2019 22:27:34 -0500

Seems this is the third time you've posted this question.
I've noticed you haven't provided a clear respomse to the question regarding the length of time between your 2nd failure and the medical determination that you were pregnant.

Even were it the same, or next, day, your commander may be on solid ground, unless your doctor provides a medical opinion, in writing, that the cause of your 2nd failure was an underlying medical condition. Specifically, your pregnancy. Unless JAG tells you differently, your pregnancy, discovered after your 2nd APFT failure, does NOT, by itself, give you a pass for that failure.
Separation under Chapter 13 applies to:
1. Pregnant soldiers whose substandard duty performance is not caused solely by pregnancy. Such
substandard performance may include failure to report to duty without medical or military authority or refusal of Conus reassignment during the first six months of pregnancy.
3. Soldiers who fail two consecutive APFTs and have no underlying medical limitations.

Response by 1SG Private RallyPoint Member made Jan 28 at 2019 10:44 PM

1SG Private RallyPoint Member — Mon, 28 Jan 2019 22:44:29 -0500

Follow on response.
The regulation exempting pregnant Soldiers from the APFT place the responsibility for seeking a diagnosis on the Soldier. In this case, the Soldier didn't do this until after the second APFT failure.
It also specifies when the exemption from the APFT occurs: "upon diagnosis."
So, unless your diagnosis occurred prior to the 2nd APFT failure, the exemption doesn't apply in this case.
Of course, I defer to JAG, but it appears you need to prepare to be separated, and work towards improving your chances of getting an Honorable discharge, versus General Under Honorable.
AR 40-501, 7-9. Profiling pregnant soldiers
b. Responsibilities.
(1) Soldier. The soldier will seek medical confirmation of pregnancy and will comply with the instructions of medical personnel and the individual’s unit commander.
(2) (b) Upon the diagnosis of pregnancy, the soldier is exempt from the regular physical training (PT) program of the unit, exempt from PT testing, exempt from wearing of load bearing equipment, including web belt, exempt from all immunizations except influenza and tetanus-diphtheria, and exempt from exposure to chemical agents in nuclear, biological, and chemical training. This includes wearing MOPP gear at any time for training purposes.

Response by SSG Dave Johnston made Jan 29 at 2019 12:31 AM

SSG Dave Johnston — Tue, 29 Jan 2019 00:31:36 -0500

If memory serves; when a Chapter packet is initiated, it has to be reviewed by JAG to insure that all the I's are crossed and the T's are dotted and part of that process will require a review of your Med records. Based on your statement of being pregnant at the time of the APFT your OB/GYN should be able to determine the conception date. If conception was prior to the APFT... a trip to JAG would be advised; Armed, of course with the documents, the involuntary separation counseling document, and the documentation of pregnancy signed by you Health Care Provider, OB/GYN.

Something is bothering me though, if Command is positive that you'll be gone by March; is there something else you may not be informing this audience of???

Response by MSgt Michael Smith made Jan 29 at 2019 9:01 AM

MSgt Michael Smith — Tue, 29 Jan 2019 09:01:02 -0500

If you knew you were pregnant then why did you take the test? I know they make you sign a form for all of that?

Response by SSG Private RallyPoint Member made Jan 30 at 2019 5:35 PM

SSG Private RallyPoint Member — Wed, 30 Jan 2019 17:35:50 -0500

To be honest I would not worry about the chapter in your situation....... The IG already advised your commander the chapter will not stick...... Even if your chain still decides to pursue, you can always fight it...... As a Soldier, you have to stand up for yourself. You are doing the right thing by researching regulations, something vast majority of Soldiers don't do. You have to understand chain of commands don't like to be wrong like in this case, but they will be ok........ I wouldn't be too worried about your status, just keep Soldiering and drive on......

Response by SSG Private RallyPoint Member made Jan 30 at 2019 5:41 PM

SSG Private RallyPoint Member — Wed, 30 Jan 2019 17:41:33 -0500

Oh yeah I forgot to mention, you are a 42A human resources specialist. Your job is to research regulations....... People hate 42A's because we know how to research, read and decipher regulations.......

Response by PO1 Mark Dozier made Mar 11 at 2020 2:33 PM

PO1 Mark Dozier — Wed, 11 Mar 2020 14:33:02 -0400

Go to JAG. If what you say is true you have a valid harrssment claim.