RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 December 2005
      DOCKET NUMBER:  AR20050006469


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Joyce Wright                  |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Ted Kanamine                  |     |Chairperson          |
|     |Mr. Robert L. Duecaster           |     |Member               |
|     |Ms. Jeanette McPherson            |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his discharge, characterized as
under other than honorable conditions (UOTHC), be upgraded to honorable.

2.  The applicant states, in effect, that he assumed that his discharge
would be upgraded within 3 years and that he needs medical care, as a
veteran, for his 9 years of service.

3.  The applicant provides no documentation in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 30 June 1987, the date of his discharge.  The application
submitted in this case is dated 28 March 2005, but was received on 29 April
2005.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant's military records show he entered active duty on 31 July
1979, as a cannon crewman (13B).  He was promoted to sergeant (SGT/E-5) on
3 August 1982.
 
4.  On 8 April 1987, he was punished under Article 15, for failure to go to
his appointed place of duty on seven occasions.  His punishment consisted
of a reduction to pay grade E-4, a forfeiture of pay and 45 days
restriction and extra duty. 

5.  Charges were preferred against the applicant on 8 April 1987 for
bigamy, (for wrongfully marrying another female Soldier, a sergeant, while
still married to his lawful wife).

6.  The applicant's company, battalion, and brigade commander, all
recommended trial by special court-martial empowered to adjudge a bad
conduct discharge (BCD).

7.  On 23 April 1987, the Staff Judge Advocate (SJA) recommended that all
commanders should recommend trial by special court-martial empowered to
adjudge a BCD.  He recommended that the charged offense be tried by special
court-martial empowered to adjudge a BCD.  The SJA recommended that the
applicant's case be referred by Court-Martial Convening Order Number 25.
On that same day, the Commanding General (CG) approved the recommendations
of the SJA.

8.  On 20 May 1987, the applicant consulted with counsel and voluntarily
requested discharge, for the good of the service, in lieu of trial by court-
martial, under the provisions of Army Regulation 635-200, chapter 10.  In
doing so, he acknowledged that he might encounter substantial prejudice in
civilian life and might be ineligible for many or all benefits administered
by the Veterans Administration (VA) and that he might be deprived of his
rights and benefits as a veteran under both Federal and State law if an
UOTHC discharge were issued.  He waived his rights and elected not to
submit a statement in his own behalf.

9.  On 19 June 1987, the separation authority approved the applicant's
request for discharge and directed that he be furnished a UOTHC discharge
and that he be reduced to the lowest enlisted grade. 

10.  The applicant was discharged on 30 June 1987.  He had a total of
7 years and 11 months of creditable service.

11.  There is no evidence that the applicant applied to the Army Discharge
Review Board (ADRB) for an upgrade of his discharge within its 15-year
statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for 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 at
any time after the charges
have been preferred, submit a request for discharge for the good of the
service
in lieu of trial by court-martial.  A discharge under other than honorable
conditions is normally considered appropriate.

13.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Section III of the regulation pertains
to authority to order and accomplish separation.  Paragraph 1-19 covers the
authority to order separation prior to expiration of term of service (ETS).
 Subparagraph 1-19c states, in pertinent part, that commanders who are
special court-martial convening authorities are authorized to order the
separation or release from AD or ADT, under chapter 10, when the authority
to approve requests for discharge has been delegated.  This authority is
limited to cases in which the Soldier:  (1) has been absent without leave
(AWOL) for more than 30 days; (2) has been dropped from the rolls of their
unit as absent in desertion; (3) has been returned to military control; (4)
is currently at the personnel control facility (PCF); and (5) is charged
only with AWOL for more than 30 days.  This authority does not include
cases involving any other charged offense, including desertion.  The
special court-martial convening authority cannot disapprove a request for
discharge in lieu of trial by court-martial.  The request for discharge
must be approved prior to trial.

14.  Army Regulation 635-200, paragraph 3-7, 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.

15.  Army Regulation 635-200, paragraph 3-7, 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 (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.  Whenever there is doubt, it is to be
resolved in favor of the individual.

16.  The Manual for Courts-Martial provides the maximum sentences that may
be imposed if convicted at trial by court-martial.  It provides, in
pertinent part, that the maximum sentence that may be imposed for a
conviction by a court-martial, for bigamy, is a dishonorable discharge
(DD), confinement for 2 years, and forfeiture of all pay and allowances.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions
of Army Regulation 635-200, chapter 10, for the good of the service, to
avoid trial by court-martial, was administratively correct and in
conformance with applicable regulations.  There is no indication that the
request was made under coercion or duress.

2.  The type of separation directed and the reasons for that separation
appear to have been appropriate considering all the available facts of the
case.

3.  The applicant has provided insufficient evidence to show that his
discharge was unjust.  He also has not provided evidence sufficient to
mitigate the character of his discharge.

4.  The evidence shows that charges were preferred against the applicant
for bigamy.  The SJA recommended that all his commanders, company,
battalion, and brigade, recommend trial by a special court-martial
empowered to adjudge a BCD.  The SJA recommended that the charged offense,
bigamy, be tried by special court-martial empowered to adjudge a BCD.  The
CG approved the recommendations of the commanders as recommended by the
SJA.

5.  The evidence also shows that the approving authority for the
applicant's UOTHC discharge was a Major General (MG/O-8) who was the
special court-martial convening authority.

6.  It is noted that the maximum sentence that could have been imposed by
the applicant if convicted at trial by court-martial was a DD, confinement
for 2 years, and forfeiture of all pay and allowances.

7.  The Board acknowledges the applicant's desire to have his UOTHC
discharge upgraded; however, the Board does not change the character of
service for the purpose of an applicant's obtaining eligibility for VA or
other available benefits.

8.  There is no evidence in the applicant's records, and the applicant has
provided none, to show that he applied for an upgrade of his discharge to
the ADRB within its 15-year statute of limitations.

9.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 June 1987; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 29 June 1990.  The applicant did not file within the 3-year
statute of limitations and has not provided a compelling explanation or
evidence to show that it would be in the interest of justice to excuse
failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_TSK____  _JBM___  __RLD __  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  _____Ted Kanamine______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050006469                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051222                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19870630                                |
|DISCHARGE AUTHORITY     |AR 635-200, chapter 10                  |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

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