BOARD DATE: 29 November 2016 DOCKET NUMBER: AR20150013536 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF __x______ __x______ ___x__ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 29 November 2016 DOCKET NUMBER: AR20150013536 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 adding to her DD Form 214 the Military Outstanding Volunteer Service 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: * adding the Expert Marksmanship Qualification Badge with Rifle Bar to her DD Form 214 * amending items 25, 26, 27, and 28 of the DD Form 214 ___________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. BOARD DATE: 29 November 2016 DOCKET NUMBER: AR20150013536 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 amendment of the following items of her DD Form 214 (Certificate of Release or Discharge from Active Duty): * Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awards or Authorized) to show the Military Outstanding Volunteer Service Medal and Expert Marksmanship Qualification Badge with Rifle Bar * Item 25 (Separation Authority) * Item 26 (Separation Code) * Item 27 (Reentry (RE) Code) * Item 28 (Narrative Reason for Separation) 2. The applicant states: a. She is providing documentation showing she was awarded the Military Outstanding Volunteer Service Medal. In 1995, she qualified for the Expert Marksmanship Qualification Badge with Rifle Bar for hitting 40 of 40 targets. She does not have any documentation showing that she qualified for this badge. b. In effect, items 25, 26, 27, and 28 of her DD Form 214 should be amended to show a different separation authority; the separation program designator (SPD) of either "JBK, JDR, JHK, KCC, or KDB" (she is unsure which applies to her); an RE-1 code; and a change from chapter 13. She was honorably discharged, but her separation code is listed as "LHJ" and her RE Code is listed as "3." c. She was a good Soldier. She worked very hard to ensure the mission success of her unit. At the time of her last assignment, she was the only female in the unit. She faced sexual harassment from the unit's commander, overhearing statements like "don’t you fxxx her until I get my chance to." She was made to feel bad about her looks. When she rejected someone, she was picked on. Soon after that there was nothing she could do that was right and she was criticized no matter what she did. She was even criticized when following unit procedures. d. She was discharged for unsatisfactory performance and the commander told her that she was lucky to be honorably discharged. She wants to reenter the military, but she is blocked from doing so. She was afraid to make this request because she was made to feel like she was unworthy and a terrible Soldier. She was humiliated. She is just now becoming comfortable with making this request. At the time, she was married and her spouse began to physically abuse her. An agent attempted to convince her to have her spouse arrested, but she was too afraid to do so. 3. The applicant provides: * Veterans of Foreign Wars certificate * Certificate of Achievement * two appreciation scrolls * two DA Forms 638 (Recommendation for Award) * Army Achievement Medal Certificate * Permanent Orders (PO) Number 101-34 * DD Form 214 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 the cases 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. 2. The applicant enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) on 7 July 1993. She was discharged from the DEP on 3 October 1993. She enlisted in the Regular Army (RA) on 4 October 1993 for 4 years. She held military occupational specialty 71L (Administrative Specialist). She was promoted to pay grade E-4 on 1 January 1995. 3. She provided the following: a. A Veterans of Foreign Wars certificate issued for participation in the Memorial Day Ceremony conducted in Florence, Italy, on 29 May 1995. b. A Certificate of Achievement, dated 13 November 1995, issued for outstanding performance of duty. c. Two appreciation scrolls issued for her hard work and dedication as a volunteer cheerleader coach and exceptional performance of duty in support of the 1995 Holiday Ball. d. A DA Form 638, dated 8 February 1996, wherein she was recommended for award of the Military Outstanding Volunteer Service Medal for meritorious service as a volunteer in the Southern European Command from 1 May 1994 to 2 February 1996. The approval authority approved the award on 25 March 1996. e. A DA Form 638, dated 26 February 1996, wherein she was recommended for award of the Army Achievement Medal for outstanding service from 10 May 1994 to 5 April 1996. The award was approved by PO Number 74-2 on 14 March 1996. f. An Army Achievement Medal Certificate, dated 14 March 1996. g. PO Number 101-34, dated 16 October 1996, wherein she was awarded the Army Good Conduct Medal (1st Award) for service from 4 October 1993 to 3 October 1996. 4. On 21 May 1997, the applicant’s company commander initiated action to separate the applicant under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Separation), chapter 13, with a general discharge. He stated the reasons for the proposed action were the applicant's poor duty performance, dereliction of duties, and failure to repay just debts from 3 July 1996 until 7 February 1997. He advised the applicant of her rights. 5. On 27 May 1997, after consulting with counsel, the applicant acknowledged receipt of the proposed separation. She also acknowledged she could receive a general discharge and the results of such a discharge. She waived her rights and elected to submit a statement in her own behalf. 6. In her statement, dated 30 May 1997, the applicant requested an honorable discharge based on hardship. She stated that she had completed 3 years and 8 months of her 4-year enlistment. She never received an Article 15 or Letter of Reprimand. She received the Military Outstanding Volunteer Service Medal, Army Achievement Medal, and Army Good Conduct Medal. An honorable discharge would help with her educational preference for future educational loans and grants. She could lose the GI Bill with a general discharge. She needed those benefits to complete her education so she could better provide for her family. 7. On 4 June 1997, the applicant's unit commander recommended the applicant's separation under chapter 13. He stated the applicant was repeatedly counseled for inadequate and deficient duty performance, for uttering worthless checks and failure to pay just debts, for failing the Army Physical Fitness Test on 29 January 1997, and for two failures to repair on 22 and 25 November 1996. 8. On 10 June 1997, the separation authority approved the applicant’s discharge. 9. She was honorably discharged in pay grade E-4 on 17 June 1997. She completed 3 years, 8 months, and 14 days of active service. Her DD Form 214 lists in: * Item 13 – * Army Achievement Medal * Army Good Conduct Medal * National Defense Service Medal * Army Service Ribbon * Overseas Service Ribbon * Marksman Marksmanship Qualification Badge with Rifle Bar * Item 25 – AR 635-200, chapter 13 * Item 26 – LHJ * Item 27 – RE-3 * Item 28 – Unsatisfactory Performance 10. A review of the applicant military records located in the integrated Personnel Electronic Records Management System failed to reveal a DA Form 2-1 (Personnel Qualification Record - Part II) or evidence/orders showing she qualified in the degree of Expert with the rifle during her period of service. REFERENCES: 1. AR 600-8-22 (Military Awards) states: a. The Military Outstanding Volunteer Service Medal is awarded to members of the Armed Forces of the United States and their reserve components, who subsequent to 31 December 1992, perform outstanding volunteer community service of a sustained, direct and consequential nature. Recommendations for the award will be submitted through official military channels using the DA Form 638. The Military Outstanding Volunteer Service Medal is categorized as a service medal and as such no orders are issued to announce its approval. b. A basic marksmanship qualification badge is awarded to indicate the degree in which an individual has qualified in a prescribed record course and an appropriate bar is furnished to denote each weapon with which he/she qualified. Each bar will be attached to the basic badge that indicates the qualification last attained with the respective weapon. Basic qualification badges are of three classes: Expert, Sharpshooter, and Marksman. An award for previous marksmanship weapons qualification is revoked automatically whenever an individual, upon completion of firing a record course for which the previous award was made, has not attained the same qualification. 2. AR 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel. Paragraph 13-2 of the regulation stated commanders would separate a Soldier for unsatisfactory performance when it was clearly established that the Soldier would not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier. The seriousness of the circumstances was such that the Soldier’s retention would have an adverse impact on military discipline, good order, and morale. The service of Soldiers separated because of unsatisfactory performance would be characterized as honorable or under honorable conditions (general) as warranted by their military records. 3. AR 635-200 further stated that prior to discharge or release from active duty, individuals would be assigned RE codes based on their service records or the reason for discharge. AR 601-210 (Active and Reserve Components Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve. Table 3-1 included a list of the RA RE codes: * RE-1 applied to Soldiers completing their term of active service who were considered qualified to reenter the U.S. Army; they were qualified for enlistment if all other criteria are met * RE-3 applied to Soldiers who were not considered fully qualified for reentry or continuous service at time of separation, but disqualification was waivable; they were ineligible unless a waiver was granted * Recruiting personnel have the responsibility for initially determining whether an individual meets current enlistment criteria; they are required to process a request for waiver under the provisions of AR 601-210, chapter 4 4. AR 635-5-1 (SPD Codes), in effect at the time, provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. The regulation stated the SPD code of "LHJ" as shown on the applicant’s DD Form 214 was applicable for Soldiers discharged under the provisions of AR 635-200, chapter 13, by reason of unsatisfactory performance. The SPD/RE Code Cross Reference Table indicated that RE-3 was the proper code to assign members separated with an SPD code of "LHJ." 5. AR 635-5 (Separation Documents), in effect at the time, governed the preparation of the DD Form 214. It stated the DD Form 214 would be prepared for all personal at the time of retirement, discharge, or release from active duty. The regulation stated: * Item 25 – would list the separation authority * Item 26 – would list the proper SPD representing the reason for separation * Item 27 – would list the appropriate code * Item 28 – would list the reason for separation based on the regulatory or statutory authority DISCUSSION: 1. The evidence of record shows the applicant was approved for award of the Military Outstanding Volunteer Service Medal on 25 March 1996. Her DD Form 214 does not list this award. 2. The evidence of record shows she was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar; however, the available evidence does not confirm she qualified for the Expert Marksmanship Qualification Badge with Rifle Bar. 3. With respect to amendment of items 25 through 28 of her DD Form 214: a. The evidence of record shows the applicant's unit commander initiated action to separate her under chapter 13, in view of the applicant's poor duty performance, dereliction of duties, and failure to repay just debts, from 3 July 1996 until 7 February 1997. She acknowledged the proposed separation action and that she requested an honorable discharge based on hardship. The separation authority approved her discharge and she was honorably discharged on 17 June 1997. b. The available evidence shows she was discharged in accordance with the regulations in effect at the time and that all requirements of law and regulations were met. There is no evidence indicating that the applicant's rights were not fully protected throughout the separation process. Absent such evidence, regularity must be presumed in this case. c. Based on the authority and reason for separation, she was properly assigned the SPD code of "LHJ" and the RE code of "3." There is no evidence of an error or injustice related to these entries. They were valid at the time of her separation and remain valid today. d. Her DD Form 214 is properly annotated with the entries associated with her approved discharge. 4. Her current RE code is a waivable code. The applicant may still apply for service in the Armed Forces and request the appropriate waiver. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013536 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013536 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2