IN THE CASE OF:	   

		BOARD DATE:	  9 July 2015

		DOCKET NUMBER:  AR20140020858 


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 discharge be upgraded to honorable.

2.  The applicant states:

	a.  His divorce from a 1977 marriage was not finalized when he re-married in 1980.

	b.  He found out in 1983 that he had two wives with valid military identification (ID) cards.  There is no other reason for his discharge other than he did not follow-up on the divorce action from his first wife.

	c.  He was stationed in Germany when he took leave and went home to sign the necessary divorce papers.  He could not stay until his divorce was final, because he had to return to duty.

	d.  His ex-wife informed him that the divorce was final and he believed her.

	e.  After his return from Germany in 1979, he was assigned to Fort Gordon, GA.  There, he met his present wife of 34 years.  His ex-wife has also been happily married for 31 years.

	f.  He trusted his divorce was final for the following reasons:

		(1)  His first marriage took place in 1977 in Griffin, GA.  Even though it was his responsibility to double check, he did not understand how he was approved for a second marriage license when an active marriage license was still on file in the same state.

		(2)  He applied for dependent ID cards for his new wife and 3-year old step-daughter and ID cards were approved for both.  It was ultimately his responsibility, but he questions why he was approved for a dependent ID card for his new wife when he still had an active ID card for his first wife.
	
	g.  The U.S. Department of Energy saw fit to trust him with a top-secret clearance in November 1983, the same year of his discharge.  He hopes he served his country well, first as a reactor security supervisor and later as a Level II Quality Assurance Nuclear Weapons Inspector.  He is now a Reverend and he is retired.

3.  The applicant provides his former employer's Pension Plan Funding Notice for 2013 and his business card.

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 17 May 1977.  He served in Germany from 7 November 1977 to 4 November 1979.  He reenlisted on 13 June 1980 for a period of 3 years.

3.  His records are void of a separation packet containing the specific facts and circumstances surrounding his discharge processing.  However, his records  contain a DD Form 214 (Certificate of Release or Discharge from Active Duty) that identifies the authority and reason for his separation.

4.  His DD Form 214 shows he was discharged on 26 May 1983, in the rank/grade of private (PV1)/E-1, after completing 6 years and 10 days of active service.  It also shows he was separated 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, and his service was characterized as under other than honorable conditions.

5.  There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge characterization.

6.  He provided his former employer's Pension Plan Funding Notice for 2013 as proof of his U.S. Government employment.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 provides that a member who commits an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service at any time after court-martial charges are preferred and must include the individual's admission of guilt.  Commanders will ensure that an individual is not coerced into submitting a request for discharge for the good of the service.  Consulting counsel will advise the member concerning the elements of the offense or offenses for which he or she is  charged, the type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A discharge under other than honorable conditions is normally issued to an individual who is discharged for the good of the service.

	b.  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.

	c.  Paragraph 3-7b 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his discharge under other than honorable conditions to honorable has been carefully considered.

2.  The applicant's records are void of the specific facts and circumstances surrounding his discharge.  It appears that he was charged with the commission of offense(s) punishable under the Uniform Code of Military Justice with a punitive discharge.  

3.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The applicant is presumed to have voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt of the charges and waived his opportunity to appear before a court-martial.

4.  It is also presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Furthermore, in the absence of evidence showing otherwise, it must be presumed the character of his discharge accurately reflects his overall record of service.

5.  His post-service accomplishments are commendable; however, he has failed to show through the documentation presented that his separation processing and/or the character of service he received were in error or unjust.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20140020858



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ABCMR Record of Proceedings (cont)                                         AR20140020858



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