IN THE CASE OF:	  

		BOARD DATE:	    10 June 2010

		DOCKET NUMBER:  AR20090021383 


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 his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge (HD).

2.  The applicant states the following:

   a.  he was discharged in lieu of court-martial due to bigamy;

   b.  his first wife, a German citizen, returned to her country and filed for a divorce;

   c.  he received his paperwork regarding the divorce, signed them and sent them back, and subsequently believed the divorce was finalized;

   d.  he remarried 1 year after his assumed divorce and was later reassigned to Germany for a second time, where his first wife presented herself to his company commander and reported that he was still married to her;

   e.  to the best of his knowledge, his first marriage was legally terminated when he remarried his second wife; and

   f.  prior to being charged with bigamy, he had served honorably, received good conduct awards, and was recognized for exceptional service and outstanding performance.


3.  The applicant provides no documents in support of his 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.  On 30 May 1978, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 11B (Infantryman).

3.  The applicant’s DA Form 2-1 (Personnel Qualification Record) shows he was promoted to the rank of sergeant on 3 December 1982.  This was the highest rank he attained.  It also shows he was assigned duty in Germany on two separate occasions.

4.  The applicant’s military record contains a DA Form 2496 (Disposition Form), dated 23 February 1987, that shows his commander’s intent to temporarily disqualify him from the Personnel Reliability Program based on bigamy.

5.  The applicant's record does not include a separation packet containing the specific facts and circumstances surrounding the applicant’s separation processing.  However, it does include a properly-constituted DD Form 214 that shows he was discharged on 27 May 1987 under the provisions of chapter 10, Army Regulation 635-200, for the good of the service-in lieu of court-martial, with an UOTHC discharge.  

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



7.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the 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 trail by court-martial.  A UOTHC discharge is normally considered appropriate.

8.  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.

9.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge (GD) 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.

10.  Army Regulation 15-185 (ABCMR), paragraph 2-9, provides that the Board 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’s contention that his UOTHC discharge should be upgraded based on the honorable service he performed prior to unknowingly having committed the act of bigamy was carefully considered.  This claim is insufficiently mitigating to grant the requested relief.

2.  The available evidence does not include a separation packet containing the facts and circumstances surrounding the applicant’s final discharge processing.  However, the record does include a properly-constituted DD Form 214 that identifies the reason and characterization of the applicant’s final discharge.  Therefore, Government regularity in the discharge process is presumed based on this document.   


3.  The applicant’s DD Form 214 shows he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service, in lieu of trial by court-martial.  In connection with such a discharge, he was charged with the commission of an offense punishable with a punitive discharge under the UCMJ.  

4.  Procedurally, members against whom court-martial charges are preferred and who desire to voluntarily request discharge are required to consult with defense counsel, and to voluntarily request separation from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt to offenses under the Uniform Code of Military Justice that authorized the imposition of a punitive discharge.  Absent evidence to the contrary, the applicant's UOTHC discharge is presumed to be appropriate and the evidence does not support an upgrade to a GD or an HD.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

6.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20090021383



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ABCMR Record of Proceedings (cont)                                         AR20090021383



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