ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	 

	BOARD DATE:  25 June 2019

	DOCKET NUMBER:  AR20180016805


APPLICANT REQUESTS:  In effect, an upgrade of his under other than honorable 
conditions discharge to fully honorable service with benefits.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	Court Order from the Superior Court of Washington, Lincoln County

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United 
States Code (USC), section 1552 (b); however, the Army Board for Correction of 
Military Records conducted a substantive review of this case and determined it is in the 
interest of justice to excuse the applicant's failure to timely file. 

2.  Incorporated herein by reference are military records which were summarized in the 
previous consideration of the applicant's case by the Army Board for Correction of 
Military Records (ABCMR) in Docket Number AR2015010378 on 2 June 2016.

3.  The applicant states, in effect, he was wrongfully discharged from the military for 
bigamy.  However, he was never married to two women [at the same time].  He signed 
divorce paperwork prior to getting remarried and returned the paperwork to his first 
spouse’s attorney.  He did nothing wrong.  Additionally, he signed a legal separation 
agreement on 18 November 1997 with CR at Camp Casey, Korea prior to arriving at 
Fort Carson, CO where he was later remarried to DR [his second wife].  During his 
discharge process he was not provided an attorney at the Judge Advocate Generals 
Office.  He was 21, alone, finger printed as a criminal, and was told by an attorney that if 
did not agree to be discharged under other than honorable conditions, he would 
probably be sent to military prison.  He has been deprived of the benefits that he 
earned.  He desires that this injustice be corrected.

4.  On 19 June 1996, the applicant enlisted in the Regular Army for 4 years.  He held 
military occupational specialty 91B (Medical Specialist).

5.  The complete facts and circumstances surrounding the applicant’s discharge 
process are not available for review with this case.  However, his record contains the 
following documents: 

      a.  DD Form 214 that was prepared at the time of separation that shows on 
29 January 1999, he was separated with an Under Other Than Honorable Conditions 
Discharge Certificate, in pay grade E-1.  He had completed 2 year, 7 months, and 
11 days of active military service.  His DD Form 214 also shows in:

*	(Separation Authority), Army Regulation (AR) 635-200, chapter 10
*	(Separation Code), KFS
*	(Reentry Code), RE-4
*	(Narrative Reason for Separation), In Lieu of Trial By Court-Martial 
*	(Signature of Member Being Separated), contains his signature

      b.  Orders Number 027-0016, Headquarters, Fort Carson confirms he was assigned 
to the U.S. Army Transition Center, for separation processing with an effective 
discharge date of 29 January 1999.

6.  The applicant's record is void of the specific facts and circumstances surrounding his 
discharge; however, based on the available evidence, he was charged for the 
commission of an offense(s) punishable under the Uniform Code of Military Justice with 
a punitive discharge.

7.  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 and risk a felony conviction.

8.  The applicant provides a Court Order, dated 7 December 1998, from the Superior 
Court of Washington, Lincoln County for dissolution of marriage and a property 
settlement agreement, dated 19 November 1997.  These documents are a result of his 
first marriage to CR.  He did not provide the marriage certificate for his second marriage 
to DR and that information is not available for review with this case.  

9.  The applicant contends, in effect, he was wrongfully discharged from the military for 
bigamy; however, he was never married to more than one woman at any given time.
Based on the available evidence, this cannot be determined, because both marriage 
certificates/licenses are not available for review.  

10.  It is 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.

11.  The ABCMR does not grant requests for discharge upgrades solely for the purpose 
of making an applicant eligible for veterans' or medical benefits.  Every case is 
individually decided based upon its merits when an applicant requests a change in the 
characterization of service or the reason for discharge or both.  Additionally, the 
granting of veterans' benefits is not within the purview of the ABCMR.  Questions 
regarding eligibility for benefits should be addressed to the Department of Veterans 
Affairs. 

12.  He completed approximately 2 years, 7 months, and 11 days of his 4 year service 
obligation.  In reaching its determination, the Board can consider the applicant’s petition 
and his service record in accordance with the published equity, injustice, or clemency 
guidance.

BOARD DISCUSSION:

1.  The Board carefully considered the applicant’s request, supporting documents, 
evidence in the record and published DoD guidance for consideration of discharge 
upgrade requests.  The Board discussed the applicant’s record, his statement and 
divorce decree, the lack of a separation packet identifying the charges and the absence 
of a marriage certificate for his second marriage.  The Board found insufficient evidence 
for clemency and determined that his character of service at discharge was not in error 
or unjust.   

2.  After reviewing the application and all supporting documents, the Board determined 
that relief was not warranted.
BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	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 the overall merits of this case are insufficient 
as a basis for correction of the records of the individual concerned.



	  
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.


ADMINISTRATIVE NOTE(S):

Not Applicable



REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military 
records must be filed within three 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 three-year statute of 
limitations if the ABCMR determines it would be in the interest of justice to do so.

2.  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 individual concerning the elements of 
the offense(s) for which the individual 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 in lieu of court-martial.

3.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness 
issued guidance to Military Discharge Review Boards and Boards for Correction of 
Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency 
determinations.  Clemency generally refers to relief specifically granted from a criminal 
sentence.  BCM/NRs may grant clemency regardless of the type of court-martial.  
However, the guidance applies to more than clemency from a sentencing in a court-
martial; it also applies to other corrections, including changes in a discharge, which may 
be warranted based on equity or relief from injustice.  

      a.  This guidance does not mandate relief, but rather provides standards and 
principles to guide Boards in application of their equitable relief authority.  In 
determining whether to grant relief based on equity, injustice, or clemency grounds, 
BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn 
testimony, policy changes, relative severity of misconduct, mental and behavioral health 
conditions, official governmental acknowledgement that a relevant error or injustice was 
committed, and uniformity of punishment.  

      b.  Changes to the narrative reason for discharge and/or an upgraded character of 
service granted solely on equity, injustice, or clemency grounds normally should not 
result in separation pay, retroactive promotions, and payment of past medical expenses 
or similar benefits that might have been received if the original discharge had been for 
the revised reason or had the upgraded service characterization.



ABCMR Record of Proceedings (cont)	 AR20180016805

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