IN THE CASE OF:	  

		BOARD DATE:	  18 June 2009

		DOCKET NUMBER:  AR20090003170 


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 the following items on her DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 23 December 1992:

* Item 23 (Type of Separation) to change her type of separation from 
discharge to release from active duty;

* Item 24 (Character of Service) to upgrade her character of service from
under other than honorable conditions (UOTHC) to honorable;

* Item 28 (Narrative Reason for Separation) to change her character of 
service from For the Good of the Service - In Lieu of Court-Martial to Expiration of Term of Service (ETS);

* Item 4a (Grade, rate or Rank) and Item 4b (Pay Grade) to show her rank 
and pay grade as specialist (SPC), E-4; and 

* Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons 
Awarded or Authorized) to show award of the Good Conduct Medal.

2.  The applicant states she was unjustly released from the military based on one incident and not based on her complete military record.  She contends that the Judge Advocate General (JAG) lawyer erred and failed to favorably advise and explain the discharge to her.  

3.  The applicant provides a personal statement; two award certificates for award of the Army Achievement Medal; her Certificate of Promotion to SPC; two Certificates of Achievement; her Certificate of Commendation, undated; her Honorable Discharge Certificate from the Regular Army; two DD Forms 214, dated 29 January 1988 and 23 December 1992; and a letter from the Department of Veterans Affairs, dated 9 October 1996, in support of her application.  

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.  After having prior service in the U.S. Army Reserve, the applicant enlisted in the Regular Army on 12 October 1988 for a period of 4 years.  Her DA Form 2-1 (Personnel Qualification Record - Part II) shows she arrived in Germany on or about 31 October 1988.  She was on temporary duty in Saudi Arabia from 12 December 1990 through 23 May 1991.  

3.  The applicant's service personnel records contain a DA Form 4187 (Personnel Action), dated 20 September 1990, which shows she was promoted to SPC, E-4 with an effective date and date of rank of 20 September 1990.  Her Certificate of Promotion shows she was promoted to SPC, E-4 on 1 September 1990.  

4.  There is no evidence of record which shows the applicant was disqualified for receiving the first award of the Good Conduct Medal for the period 12 October 1988 to 11 October 1991 by her chain of command.  There is no evidence of record which shows she received any disciplinary actions during this period.  

5.  The applicant was discharged on 5 March 1992 for immediate reenlistment.  She reenlisted on 6 March 1992 for a period of 4 years in pay grade E-4.  

6.  Headquarters, 4th Personnel Service Company, 4th Infantry Division (Mechanized), Fort Carson, CO, Orders 356-01, dated 21 December 1992, show the applicant was reduced from SPC to private (PVT), E-1 with an effective date of 17 December 1992.  

7.  Headquarters, 4th Personnel Service Company, 4th Infantry Division (Mechanized), Fort Carson, CO, Orders 356-02, dated 21 December 1992, show the applicant was reassigned to the U.S. Army transition point to be discharged on 23 December 1992.  Her rank is shown as "PV1" on the standard name line of these orders.

8.  The applicant's discharge packet is not available.  However, her DD Form 214 for the period ending 23 December 1992 shows she was discharged on 23 December 1992 under the provisions of Army Regulation 635-200, chapter 10 for the good of the service – in lieu of court-martial with the issuance of an UOTHC discharge.  She completed a total of 4 years, 2 months, and 10 days of active military service.  

9.  Item 23 of her DD Form 214 for the period ending 23 December 1992 shows the entry "Discharge."  Item 9 (Command to Which Transferred) shows the entry "NA."

10.  Item 4a and item 4b on the applicant’s DD Form 214 for the period ending 23 December 1992 shows her rank and pay grade as “PVT” and “E-1,” respectively.  

11.  Item 13 of her DD Form 214 for the period ending 23 December 1992 does not show entitlement to the Good Conduct Medal.  

12.  The applicant provided a personal statement in support of her claims.  She stated, in effect, that she was automatically presumed guilty because her superior out-ranked her and she was denied the opportunity to defend herself.  She stated that the JAG lawyer's explanation of the court martial proceedings and her mind set at the time to comprehend the consequences did not agree.  She states she served respectfully, responsibly, and gave complete dedication while assigned in Germany under the command of Captain M_____.  While in Saudi Arabia, she was sexually assaulted by a fellow Soldier.  She described how she worked through the fear and anxiety over time.  She claimed that her past no longer has control over her.  She has seen a psychiatrist and psychologist at the Veterans Hospital and she is at peace with this part of her life.  She has moved on with her life and she now has a wonderful husband and six children.  

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate.

14.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

15.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

16.  Army Regulation 635-5 prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  In pertinent part, it directed that the grade in which enlisted personnel were serving at the time of separation would be entered in item 4a and the pay grade will be entered in item 4b.

17.  Army Regulation 635-5, directs that the command to which the Soldier will be transferred is entered in item 9 of the DD Form 214.  Table 2-2 of this regulation, in effect at the time, states that if the Soldier is discharged with no further military status, then "NA" will be entered in item 9.

18.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 6-15, in effect at the time, stated that when the separation authority determines that a Soldier was to be discharged from the Service under other than honorable conditions, the Soldier would be reduced to the lowest enlisted grade.  

19.  Army Regulation 600-8-22 (Military Awards) provides that the Good Conduct Medal is awarded to individuals who distinguish themselves by their conduct, efficiency and fidelity during a qualifying period of active duty enlisted service.  This period is 3 years except in those cases when the period for the first award ends with the termination of a period of Federal military service.  Although there is no automatic entitlement to the Good Conduct Medal, disqualification must be justified.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant was discharged from active duty on 23 December 1992.  Since she was discharged from active duty with no further military status, there is no basis for amending her DD Form 214 for the period ending 23 December 1992 to show she was released from active duty.  

2.  The applicant contends that she was unjustly released from the military based on one incident and not on her complete military record.  Although the applicant's discharge packet is not available, it is presumed the separation authority appropriately directed the issuance of an UOTHC discharge based on the her overall record of service and that the separation action was processed in accordance with the governing regulation.  Therefore, there is no basis for granting her request for an upgrade to honorable or to change her character of service to ETS.  

3.  The applicant also contends that the JAG lawyer erred by failing to favorably advise and explain the discharge to her.  However, there is no evidence of record to substantiate the applicant's claim.

4.  The applicant has provided no evidence other than her self-authored statement that the circumstances regarding her personal problems were the reasons she committed the misconduct which led to her discharge.  She has failed to show through the evidence submitted with her application or the evidence of record that the actions taken in her case were in error or unjust.  

5.  The applicant was discharged under the provisions of Army Regulation 635-200, chapter 10 with an UOTHC discharge.  As a result, she was reduced from SPC to the lowest enlisted grade of PVT, E-1.  Based on Army Regulation 635-5, the DD Form 214 is meant to reflect the applicant's status as of his last day of active duty on 23 December 1992.  As of that date, she was a PVT, E-1.  Therefore, her DD Form 214 for the period ending 23 December 1992 accurately reflects her rank and pay grade as PVT, 
E-1.

6.  It appears the applicant met the regulatory requirements for the first award of the Good Conduct Medal for a qualifying period from 12 October 1988 through 11 October 1991.  Presumably her service was honorable, otherwise she would not have been allowed to reenlist on 6 March 1992.  There is no evidence of any disciplinary actions against the applicant and no record of a commander's disqualification for the first award of the Good Conduct Medal during the applicant's three-year period of service from 12 October 1988 through               11 October 1991.  Since there is no record of a disqualifying factor for the first award of the Good Conduct Medal, the applicant's records should be corrected to show this award.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X___  ___X____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was 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:

	a.  awarding her the first award of the Good Conduct Medal for the period 
12 October 1988 through 11 October 1991; and

	b.  amending item 13 of her DD Form 214 for the period ending 23 December 1992 to add the Good Conduct Medal.

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 amending items 23, 24, 28, and 4a of her DD Form 214 for the period ending 23 December 1992.  




      _______ _   _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.


ABCMR Record of Proceedings (cont)                                         AR20090003170





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ABCMR Record of Proceedings (cont)                                         AR20090003170



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