IN THE CASE OF: BOARD DATE: 2 June 2016 DOCKET NUMBER: AR20150010378 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X___ ____X___ ____X___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 2 June 2016 DOCKET NUMBER: AR20150010378 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 2 June 2016 DOCKET NUMBER: AR20150010378 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 discharge, from an under other than honorable conditions discharge to an under honorable conditions (general) discharge. 2. The applicant states he was discharged because of bigamy; however, he had signed divorce papers for his previous marriage and his wife at the time was living in another state. He was informed that the papers were filed and the divorce was completed. Consequently, he remarried and sought benefits for his new wife. Later, he discovered through the military that his wife had not filed the divorce papers and he was still married to her. He was then discharged based on these conditions. It was not his intention to bring shame on his family, the Army, or himself. 3. The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and his State of Florida Driver License. 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 19 June 1996. 3. His record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing. However, his record does contain a DD Form 214 that identifies the authority and reason for his separation. 4. His DD Form 214 shows he was discharged on 29 January 1999, in the rank/grade of private/E-1, after completing 2 years, 7 months, and 11 days of net active service this period. He was separated under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, 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 within that board's 15-year statute of limitations. 6. The applicant provides no documentary evidence regarding the underlying reason(s) for his discharge. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. b. 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. c. 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 Department of Veterans Affairs' 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. DISCUSSION: 1. The applicant's request for an upgrade of his under other than honorable conditions discharge was carefully considered. 2. The applicant's record is void of the specific facts and circumstances surrounding his discharge; however, it appears he was charged with the commission of an 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 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. He provided no evidence that would indicate the contrary. Further, it is presumed his discharge accurately reflects his overall record of service during his enlistment. //NOTHING FOLLOWS//