IN THE CASE OF:	  

		BOARD DATE:	  3 November 2009

		DOCKET NUMBER:  AR20090007330 


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 that her general discharge be upgraded to an honorable discharge.  She also essentially requests that her DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show her service in Southwest Asia.

2.  The applicant states, in effect, that she has been trying to go back to school, but is unable to use her Illinois veteran's benefits or scholarships due to not having an honorable discharge.  She also claims that she served honorably during Operation Desert Storm and she would like to have her court-martial free service acknowledged as being honorable.  

3.  The applicant provides her DA Form 2-1 (Personnel Qualification Record - Part II); orders, dated 12 November 1991, which discharged her on 18 November 1991; a letter, dated 14 September 2009, from the National Personnel Records Center (NPRC) to a Member of Congress; a memorandum, dated 26 August 2009, written by a Member of Congress to the NPRC Congressional Inquiry Division; a privacy release form, dated 28 July 2009; a Standard Form 180 (Request Pertaining to Military Records), dated 26 August 2009; an unreadable map of Kuwait; and six pages of copied photographs in support of this 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.  The applicant's military records show she enlisted in the Regular Army on 
2 October 1989.  She completed basic and advanced individual training and was awarded military occupational specialty 88M (Motor Transport Operator).  She was then reassigned to Fort Stewart, Georgia for her initial permanent duty assignment.

3.  The Gulf War Deployment Roster shows the applicant deployed to Southwest Asia from 5 October 1990 to 17 April 1991.

4.  On 19 May 1991, the applicant's installation driving privileges were suspended for 1 year after she was apprehended for drunk driving on that date.

5.  On 23 May 1991, the applicant received a General Officer Memorandum of Reprimand (GOMOR) for being in physical control of a motor vehicle on 19 May 1991 with a blood alcohol level greater than or equal to .10 percent in violation of Federal law.

6.  The applicant's military records contained a U.S. Army Criminal Investigation Command (USACIDC, also known as CID) Report of Investigation which essentially showed the applicant was found to have made a false official statement on 1 August 1991 when she falsely accused a fellow Soldier of raping her to cover her absence from a morning duty formation.

7.  On 14 August 1991, the applicant underwent a mental status evaluation and she was determined to be psychiatrically cleared for any administrative action deemed appropriate by her command.

8.  On or about 8 October 1991, the applicant's commanding officer notified her of his intention to initiate action to discharge her from the United States Army under the provisions of paragraph 14-12c, Army Regulation 635-200 (Enlisted Personnel - Personnel Separations) due to serious misconduct.  He also recommended that the applicant receive a discharge under other than honorable conditions and advised her of her rights, which included consulting with counsel.
9.  On 8 October 1991, the applicant acknowledged that she had been advised by her consulting counsel of the basis for the contemplated action to accomplish her separation under the provisions of chapter 14 (Separation for Misconduct), Army Regulation 635-200, and its effects, of the rights available to her, and the effect of any action taken by her in waiving her rights.  She requested to have her case considered by a board of officers and to personally appear before this board, and requested representation by counsel.  She did not elect to submit statements in her own behalf.  

10.  Although the applicant's commanding officer notified the applicant that he was recommending that she receive a discharge under other than honorable conditions, his official request that was submitted on 9 October 1991 only recommended that she receive a general discharge under honorable conditions.  As the applicant was no longer being considered for a discharge under other than honorable conditions, she no longer had the right to request consideration of her case before a board of officers.

11.  On 28 October 1991, the proper separation authority approved the applicant's elimination under the provisions of paragraph 14-12c, Army Regulation 635-200, and essentially directed that she receive a general discharge.  On 18 November 1991, the applicant was discharged accordingly.

12.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of her discharge within its 15-year statute of limitations.

13.  Item 18 (Remarks) of the applicant's DD Form 214 does not show that she served in Southwest Asia during Operations Desert Shield and Desert Storm, but information retrieved from the Gulf War Deployment Roster confirms that she deployed to Southwest Asia from 5 October 1990 to 17 April 1991.  Inasmuch as the applicant's DD Form 214 will be corrected to show her deployment to Southwest Asia, related entries should also be corrected on this document.

14.  Item 12f (Foreign Service) of the applicant's DD Form 214 does not show that she had any foreign service, but she served in Southwest Asia for 6 months and 13 days from 5 October 1990 to 17 April 1991.

15.  Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 does not show that she was awarded the Southwest Asia Service Medal, the Kuwait Liberation Medal awarded by the Kingdom of Saudi Arabia, or the Kuwait Liberation Medal 
awarded by the Government of Kuwait.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense to include abuse of illegal drugs, convictions by civil authorities, and absences without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that a discharge under other than honorable conditions is normally considered appropriate, but a general discharge under honorable conditions or an honorable discharge may be granted.  

17.  Army Regulation 635-200 provides, in pertinent part, 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 (emphasis added) or is otherwise so meritorious that any other characterization would be clearly inappropriate.

18.  Army Regulation 635-200 also provides, in pertinent part, 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.

19.  Army Regulation 635-5 (Separation Documents) provides, in pertinent part, that for a Reserve Soldier ordered to active duty and deployed to a foreign country, enter the following three statements in succession in item 18.  However, for an active duty Soldier deployed with his or her unit during their continuous period of active service, enter only the second statement:

	a.  "ORDERED TO ACTIVE DUTY IN SUPPORT OF (OPERATION NAME) PER 10 USC (applicable section)";

	b.  "SERVICE IN (NAME OF COUNTRY DEPLOYED) FROM (inclusive dates for example, YYYYMMDD - YYYYMMDD)"; and

	c.  "SOLDIER COMPLETED PERIOD FOR WHICH ORDERED TO ACTIVE DUTY FOR PURPOSE OF POST-SERVICE BENEFITS AND ENTITLEMENTS."



20.  This same regulation further provides, in pertinent part, that the total amount of foreign service completed during the period covered by the DD Form 214 will be entered in item 12f of this document.

21.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Southwest Asia Service Medal is awarded to Army members who participated in Operations Desert Shield/Desert Storm in the designated area on or after 2 August 1990 to 30 November 1995.  It provides that one bronze service star will be affixed to the Southwest Asia Service Medal for each campaign a Soldier participates in.  Based upon the applicant's service in Saudi Arabia, she participated in the Defense of Saudi Arabia campaign (2 August 1990 to 
16 January 1991), the Liberation and Defense of Kuwait campaign (17 January 1991 to 11 April 1991) and the Southwest Asia Cease-Fire campaign (12 April 1991 to 30 November 1995).

22.  The Kuwait Liberation Medal awarded by the Kingdom of Saudi Arabia was approved on 3 January 1992 and is awarded to members of the Armed Forces of the United States who participated in the Persian Gulf War between 17 January 1991 and 28 February 1991.

23.  The Kuwait Liberation Medal awarded by the Government of Kuwait was approved on 9 November 1995 and is awarded to members of the Armed Forces of the United States who participated in the Persian Gulf War between 2 August 1990 and 31 August 1993.

24.  Paragraph 5-1 of Army Regulation 600-8-22 states that orders are not published for service medals, but they are annotated on records by the personnel officer.

25.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her general discharge should be upgraded to an honorable discharge.  She also contends that her DD Form 214 should be corrected to show her service in Southwest Asia.

2.  The fact that the applicant claims she is unable to use her Illinois veteran's benefits due to not having an honorable discharge was considered.  However, discharges are not upgraded solely for the purpose of making an applicant eligible for benefits.

3.  The applicant's contention that her discharge should be upgraded to honorable due to her service in Southwest Asia was also considered.  However, her service in Southwest Asia is likely the sole reason she was issued a general discharge instead of a discharge under other than honorable conditions, which is normally the appropriate characterization for Soldiers discharged for misconduct.  

4.  Evidence of record shows the applicant received a GOMOR for being in physical control of a motor vehicle on 19 May 1991 with a blood alcohol level greater than or equal to .10 percent in violation of Federal law.  Records also show she made a false official statement on 1 August 1991 when she falsely accused a fellow Soldier of raping her to cover her absence from a morning duty formation.  As a result, her command appropriately discharged her under the provisions of Army Regulation 635-200 for misconduct.  The applicant failed to provide any evidence which shows that any requirements of law and regulation were not met or that her rights were not fully protected throughout the separation process.  

5.  As the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel, she is not entitled to an honorable discharge.

6.  As the applicant served in Southwest Asia from 5 October 1990 to 17 April 1991, it would be appropriate at this time to correct item 18 of her DD Form 214 to reflect this information.

7.  The applicant served 6 months and 13 days of foreign service from 5 October 1990 to 17 April 1991, but item 12f of her DD Form 214 does not reflect this fact.  Therefore, she is entitled to correction of item 12f of her DD Form 214 to show that she served 6 months and 13 days of foreign service.

8.  The applicant served in Southwest Asia from 5 October 1990 to 17 April 1991, and participated in three campaigns during her deployment.  Therefore, she is entitled to correction of her DD Form 214 to show the award of the Southwest Asia Service Medal with three bronze service stars, the Kuwait Liberation Medal awarded by the Kingdom of Saudi Arabia, and the Kuwait Liberation Medal awarded by the Government of Kuwait.


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 the applicant's DD Form 214 be correcting by:

   a.  adding the following statement to item 18:  "SERVICE IN SOUTHWEST ASIA FROM 19901005 - 19910417";
   
   b.  adding to item 12f “6 months and 13 days of foreign service”; and 
   
   c.  adding to item 13 the award of the Southwest Asia Service Medal with three bronze service stars, the Kuwait Liberation Medal awarded by the Kingdom of Saudi Arabia, and the Kuwait Liberation Medal awarded by the Government of Kuwait.
   
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 upgrading her general discharge to an honorable discharge.




      _______ _   _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)                                         AR20090007330



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ABCMR Record of Proceedings (cont)                                         AR20090007330



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