IN THE CASE OF:	   

		BOARD DATE:	  2 August 2011

		DOCKET NUMBER:  AR20110000820 


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:

* Award of the Army Commendation Medal (ARCOM)
* Award of the Army Good Conduct Medal
* Promotion to specialist four (SP4)/E-4

2.  The applicant states she was unjustly discharged in 1968 as a result of a witch-hunt.  However, in 1976, the Army Discharge Review Board (ADRB) upgraded her character of service to fully honorable.  Nevertheless, her early discharge denied her the awards and the promotion.  She served her country with pride and honor.  Through no fault of hers, she and nine other women were singled out due to the misguided beliefs that were prevalent in the Army at the time. 

3.  The applicant provides her DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge/Report of Separation from Active Duty). 

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.  With respect to the ARCOM, based upon her application, the evidence of record, and accompanying supporting documents she submitted, it does not appear that she was recommended for or awarded the ARCOM as there are no orders or other evidence on file in her service records confirming this award.  

	a.  The governing law and regulations place time limitations on submission of award recommendations.  Absent any evidence of record or independent evidence provided by the applicant that shows she was recommended for or she was awarded the ARCOM by the proper award authority, her request exceeds these statutory and regulatory time limitations.  

	b.  However, Section 1130 of the United States Code (10 USC 1130) allows the Service Secretary concerned to review a proposal for the award of, or upgrading of, a decoration that is otherwise precluded from consideration by limitations established by law or policy.  In order to request an award under 10 USC 1130, she must submit a DA Form 638 (Recommendation for Award).  The DA Form 638 should clearly identify her unit, the period of assignment, and the award being recommended.  A narrative of the actions or period for which she is requesting recognition must accompany the DA Form 638.  In addition, her award request should be supported by sworn affidavits, eyewitness statements, certificates and related documents.  Corroborating evidence is best provided by commanders, leaders, and fellow Soldiers who had personal (i.e., eyewitness) knowledge of the circumstances and events relative to the request.  

	c.  Title 10 USC, 1130 also requires that a request of this nature be referred to the Service Secretary from a Member of Congress.   Therefore, she must submit her request through a Member of Congress to the Secretary of the Army at the following agency: U.S. Army Human Resources Command (USAHRC), ATTN: SGS, 1600 Spearhead Division Avenue, Fort Knox, KY 40122.  The burden and costs for researching and assembling documentation to support approval of requested awards and decorations rest with the requestor. 

	d.  If the applicant chooses to pursue the Army Commendation Medal by submitting a request under the provisions of 10 USC 1130, and her request is subsequently denied by USAHRC, she may reapply to the ABCMR.  Therefore, the ARCOM issue will not be discussed further in the Record of Proceedings. 

3.  The applicant's records show she enlisted in the Regular Army for 3 years on 23 June 1967.  She completed basic (BT) and advanced individual training (AIT) and was awarded military occupational specialty 02B (Cornet/Trumpet Player).  She was assigned to the 14th Army Band, Fort McClellan, AL, on 5 January 1968. 

4.  Her DA Form 20 (Enlisted Qualification Record) shows the following entries:

* Item 33 (Appointments and Reductions) she was promoted to: 

* Private/E-1 (P (Permanent)) on 23 June 1967
* Private/E-2 (P) on 23 October 1967
* Private First Class (PFC)/E-3 (P) on 20 February 1968 

* Item 38 (Record of Assignments) she received "excellent" conduct/efficiency rating during BT/AIT; no entry is made on or after her assignment to the 14th Army Band on 5 January 1968
* Item 41 (Awards and Decorations) shows only the National Defense Service Medal

5.  On 13 March 1968, the U.S. Army Criminal Investigation Command initiated an investigation upon receiving allegations that several members stationed at Fort McClellan were homosexuals or engaged in indecent, lewd, and lascivious acts.  As a result of the information developed during the investigation, action was initiated to refer the applicant and several other Soldiers to a Board of Officers in accordance with Army Regulation 635-89 (Personnel Separation - Homosexuality) to determine if they should be retained or eliminated from the service. 

6.  On 6 June 1968, the applicant's immediate commander notified her of his intent to initiate discharge action against her under the provisions of Army Regulation 635-89 by reason of in-service homosexual acts - Class II.  She acknowledged the notification, consulted with counsel, and she was advised of her rights.  She elected to appear before a board of officers.  

7.  Subsequent to her acknowledge and election of rights, her immediate commander initiated a recommendation for separation action against her.  He indicated that her conduct and efficiency rating was "excellent" from 1 July 1967 to 4 January 1968; however, she had an "unsatisfactory" conduct and "excellent" efficiency rating from 5 January 1968 to the present.


8.  On 31 July 1968, a board of officers convened at Fort McClellan, AL, and found the applicant engaged in homosexual acts with PFC DR during the period November 1967 through April 1968.  The board recommended the applicant be discharged with the issuance of an Undesirable Discharge Certificate. 

9.  On 18 October 1968, the convening/separation authority approved only so much of the findings as included a determination that the applicant's conduct established unsuitability within the meaning of Army Regulation 635-212 (Unsuitability).  He ordered she be furnished a General Discharge Certificate. 

10.  She was discharged on 25 October 1968.  Her DD Form 214 shows she was discharged under the provisions of Army Regulation 635-212 for unsuitability with a general character of service.  She completed 1 year, 4 months, and 3 days of creditable active service.  She was assigned SPD (Separation Program Designator) code "362" (unsuitability).  Additionally, this form shows in: 

* items 5a (Grade, Rate or Rank), 5b (Pay Grade), and 6 (Date of Rank) - the entries "PFC (Permanent)," "E-3," and "20 FEB 68" respectively.
* item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) - the National Defense Service Medal

11.  Her records do not contain official orders that show she was awarded the Army Good Conduct Medal or recommended for or promoted to SP4/E-4 prior to her discharge from active duty.

12.  On 23 March 1977, the ADRB determined she was not properly discharged and granted her relief in the form of an upgrade of the characterization of her service to fully honorable.  Accordingly, she was reissued a DD Form 214 to reflect the new character of service.  This form assigned her an SPD Code of "JFF" (Secretarial Authority) and a reentry (RE) code of "3."

13.  Army Regulation 672-5-1 (Military Awards), in effect at the time, provides that the Good Conduct Medal is awarded to individuals who have completed a qualified 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.  The enlisted person must have had all “excellent” conduct and efficiency ratings and no convictions by a court-martial. Throughout a qualifying period, each enlisted Soldier must meet all of the following criteria for an award:

	a.  The immediate commander evaluates the Soldier’s character as above reproach.
	b.  The record of service indicates that the Soldier has willingly complied with the demands of the military environment; been loyal and obedient to their superiors; faithfully supported the goals of their organization and the Army; and conducted themselves in such an exemplary manner as to distinguish them from their fellow Soldiers.

	c.  In terms of job performance, the Soldier’s efficiency must be evaluated and must meet all requirements and expectations for that Soldier’s grade, MOS, and experience.

	d.  Individuals whose retention is not warranted under standards prescribed in other regulations or for whom a bar to reenlistment has been approved under appropriate regulations are not eligible for this award.

14.  Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, prescribed policies, responsibilities, and procedures pertaining to career management of Army enlisted personnel.  Chapter 7 contained Army-wide promotion policy and procedures.  It stated, in pertinent part, that the promotion of enlisted personnel to grade E-5 through E-9, appointments, grade reductions, and grade restoration were announced in orders.  

15.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  Chapter 2 of the regulation in effect at the time contains guidance on the preparation of the DD Form 214.  It states items 5a and 5b will show the active duty rank and pay grade at time of the Soldier's separation; the rank is taken from the Soldier’s promotion/reduction orders; and item 6 shows the date of rank.

16.  Army Regulation 635-89, in effect at the time, prescribed criteria and procedures for the investigation of homosexual personnel and their discharge from the Army.  Homosexuals were divided into three classes.  Class I included those cases which involved an invasion of the rights of another person as where the homosexual act is accompanied by assault or coercion or where cooperation or consent was obtained through fraud; Class II included those cases wherein personnel subject to court-martial jurisdiction engaged in one or more provable homosexual acts not within the purview of Class I; Class III included cases of overt, confirmed homosexuals who did not engage in any homosexual acts since entry into military service and individuals who possessed homosexual tendencies to such a degree as to render them unsuitable for military service.  Individuals who admitted to being confirmed homosexuals or admitted committing one or more overt acts of homosexuality while in service would normally be separated under other than honorable conditions if, because of the improbability of successful trial, they were separated administratively.
17.  Army Regulation 635-212, then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability.  When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.  Paragraph 6b provided that an individual was subject to separation for unsuitability when one or more of the following conditions existed:

* inaptitude
* character and behavior disorders
* apathy (lack of appropriate interest, defective attitudes, and inability to expend effort constructively)
* alcoholism
* enuresis

DISCUSSION AND CONCLUSIONS:

1.  With respect to the Army Good Conduct Medal:

	a.  She received "excellent" conduct and efficiency ratings during BT and AIT.  However, her rating at her first duty station from January to October 1968 is not listed.  Her commander indicated her efficiency was "excellent" but her conduct was "unsatisfactory."  Although the separation authority approved a general discharge, he did so with a stipulation that she was unsuitable for military service at the time.  Additionally, although the ADRB upgraded her character of service, the reason for her separation - unsuitability - remained valid.  Additionally, despite the upgrade, she remained not fully eligible to reenter military service. 

	b.  the Army Good Conduct Medal is awarded on a selective basis to each Soldier who distinguishes himself or herself from among his or her fellow Soldiers by their exemplary conduct, efficiency, and fidelity throughout a specified period of continuous enlisted active Federal military service, as outlined in this chapter.
There is no right or entitlement to the medal until the immediate commander has approved the award and the award has been announced in permanent orders.  She does not appear to have met the criteria for award of the Army Good Conduct Medal. 

2.  With respect to her promotion to the rank/grade of SP4/E-4, there is no evidence in her records and she did not submit substantiating evidence that shows she was or would have been recommended for or promoted to SP4/E-4 prior to her discharge.  Furthermore, it is unclear what her unit E3 and E-4 enlisted strength was at the time or if there were any waivers to promote her ahead of her peers or if there were any unit vacancies for the grade she requests.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that 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.

ABCMR Record of Proceedings (cont)                                         AR20110000820



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ABCMR Record of Proceedings (cont)                                         AR20110000820



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