IN THE CASE OF: BOARD DATE: 21 January 2016 DOCKET NUMBER: AR20150006113 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 an upgrade of his under other than honorable conditions discharge to a general or honorable discharge. 2. The applicant states he would like his discharge upgraded so he will be able enter a military installation to see family members that are serving in the Army and the Air Force. In February 2015, he was denied entry to Fort Campbell, KY. 3. The applicant provides no additional evidence. 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 enlisted in the Regular Army on 22 July 1987. He served in Korea from 31 March to 13 December 1989. He was subsequently placed on orders for assignment to the 20th Replacement Detachment, Fort Campbell, KY, with a report date of 18 January 1990. 3. On 18 January 1990, he was reported as absent without leave (AWOL) for failure to report to the 20th Replacement Detachment. He was subsequently dropped from the rolls as a deserter. 4. On 23 March 1990, he was returned to the military control and assigned to the 20th Replacement Detachment, Fort Campbell. 5. Court-martial charges were subsequently preferred against him for one specification of being AWOL from 18 January to 22 March 1990 (63 days). 6. On 27 March 1990, the applicant consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and the procedures and rights available to him. Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 - for the good of the service in lieu of trial by court-martial. 7. In his request for discharge, he acknowledged: a. He was submitting the request of his own free will and had not been subjected to any coercion, that he was guilty of the charges that had been preferred against him, and that under no circumstances did he desire further rehabilitation or to perform further military service. He declared his defense counsel explained to him to his complete understanding and satisfaction, all legal and social ramifications of that type of discharge and what it would mean to him in the future. b. He acknowledged he understood if the request were approved he might be discharged under other than honorable conditions. He also acknowledged he understood he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and he might expect to encounter substantial prejudice in civilian life. He declined to submit a statement in his own behalf. 8. On 17 April 1990, his immediate and senior commanders recommended approval of his request with the issuance of an under other than honorable conditions discharge. 9. On 18 April 1990, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, with his service characterized as under other than honorable conditions. 10. On 18 April 1990, the separation authority, Commander, 101st Airborne Division and Fort Campbell, issued the applicant a memorandum, subject: Exclusion from the Fort Campbell Military Reservation, wherein he stated, in part: a. The applicant was notified that effective upon receipt of the memorandum he was ordered to not enter, reenter, remain upon, engage in activities upon, or be found within the limits of Fort Campbell. He was ordered not to reenter Fort Campbell because of his misconduct which was the basis for his chapter 10 discharge under other than honorable conditions. b. The order of exclusion was permanent in nature and could be revoked or modified only in writing by the Commander, Fort Campbell. Any other action purporting to revoke or modify the order would be invalid. 11. On 20 April 1990, he was discharged accordingly. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with an under other than honorable conditions characterization of service. 12. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 13. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment included 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. A discharge under other than honorable conditions 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 was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. DISCUSSION AND CONCLUSIONS: 1. The evidence of record confirms the applicant was charged with the commission of a serious offense punishable under the UCMJ with a punitive discharge. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. As such, he voluntarily requested discharge to avoid a trial by court-martial. 2. The evidence of record also confirms he was afforded due process and his administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. 3. The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for benefits such as access to military installations. Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge. 4. His record of service shows he was AWOL for over 60 days when he was returned to military control. Based on this record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct rendered his service unsatisfactory and does not meet the criteria for an honorable or a general discharge. 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) AR20150006113 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150006113 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1