IN THE CASE OF:	  

		BOARD DATE:	  4 August 2011

		DOCKET NUMBER:  AR20110001261 


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, in effect:

* his discharge under other than honorable conditions be upgraded to honorable
* his first name be corrected on his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* the entries in item 18 (Remarks) be deleted

2.  The applicant states:

* he served his country proudly both as a combat arms infantryman, and he helped put a drug ring out of business by working for the U.S. Army Criminal Investigation Command (USACIDC, also known as CID)
* on 19 November 1978 he was given a DD Form 214, an honorable discharge, and a plane ticket back home by CID

3.  The applicant provides:

* DD Form 214
* Personal statement, dated 30 November 2010
* Letter, dated 11 January 2011, from a Member of Congress who points out the applicant claims his first name is spelled incorrectly on his DD Form 214 and that the entries in item 18 are not true because he never deserted 

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.  His DD Form 398 (Statement of Personal History), dated 8 October 1974, and his enlistment contract show the first name Rafael.  He enlisted in the Regular Army on 13 November 1974 for a period of 4 years.  He completed his training and was awarded military occupational specialty 11B (infantryman).

3.  Between March 1977 and February 1978, nonjudicial punishment (NJP) was imposed against the applicant on four occasions for various offenses which included being absent without leave (AWOL), assault, and violating a lawful general regulation. 

4.  His DA Form 2-1 (Personnel Qualification Record) shows he was AWOL from 14 February 1977 to 10 March 1977, 26 January 1978 to 2 February 1978, and 15 February 1978 to 21 February 1978 (total of 40 days).

5.  Records show he went AWOL on 18 April 1978 and he was dropped from the rolls of his unit as a deserter on 17 May 1978.  

6.  On 28 September 1982, a notification letter was sent to the applicant that stated, in pertinent part, "A review of your military personnel records failed to produce a record of your discharge from the service.  Available documentation indicates that you are in a status of desertion and are eligible for a discharge in absentia."  He was advised his anticipated discharge would be under other than honorable conditions, receipt of such discharge might deprive him of many or all the veteran benefits administered under Federal and State laws, and that he might encounter substantial prejudice in obtaining employment and other benefits.  He was also offered the opportunity to submit a statement in his own behalf.  He was also advised that if a response was not received within 45 days from the date of the letter, the discharge action would be taken to effect his discharge.     
7.  Records show the notification letter was returned as undeliverable.

8.  He was discharged in absentia on 6 September 1983 with a discharge under other than honorable conditions under the provisions of Army Regulation 
635-200, chapter 14, for misconduct (desertion).  He had served a total of 3 years, 3 months, and 24 days of creditable active service with 2,000 days of lost time.

9.  His DD Form 214 shows:

* The first name Raphael in item 1 (Name)
* The entry "Time lost before normal expiration of term of service:  246 days" in item 18
* The entry "Time lost after normal expiration of term of service 
      12 November 1978:  1, 754 days" in item 18

10.  All of his service personnel records show the first name Rafael.

11.  There is no evidence in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations. 

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribes procedures for separating members for misconduct.  Specific categories included fraudulent enlistment/reenlistment, conviction by civil court, desertion and absence without leave, and other acts or patterns of misconduct.  Paragraph 14-24 provided that an absentee beyond military control by reason of unauthorized absence may be discharged in absentia when the notice procedures set forth in paragraph 14-31 were followed.  Paragraph 14-31 provided that the Commander, U.S. Army Enlisted Records and Evaluation Center would notify the service member of the basis for the pending discharge action, the effective date thereof, the type of discharge to be issued, and its effect.  A letter would be forwarded by certified mail, return receipt requested, to the record address of the member, or next of kin, as appropriate.  If a reply was not received within 45 days from date of delivery, the discharge action would be completed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.    





13.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

14.  Army Regulation 635-200, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  Evidence shows his first name is Rafael.  Therefore, item 1 of his DD Form 214 should be corrected to show this name.

2.  The applicant contends the entries in item 18 of his DD Form 214 are untrue because he never deserted.  However, evidence shows he had 40 days of lost time due to AWOL prior to going AWOL on 18 April 1978.   He went AWOL on 
18 April 1978, he was dropped from the rolls of his unit as a deserter on 17 May 1978, and he was discharged in absentia on 6 September 1983.  It appears he had 249 days of lost time during the period 14 February 1977 to 12 November 1978 (his expiration term of service (ETS)) and he had 1,759 days of lost time after his ETS.  Therefore, there is insufficient evidence on which to amend the entries in item 18 of his DD Form 214, and he provides no evidence to show he was given a DD Form 214 in 1978.

3.  His record of service included four NJPs and 2000 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge or a general discharge.

4.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  
  
5.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__X_____  ____X___  ____X__  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by deleting the first name in item 1 of his DD Form 214 and replacing it with the entry "Rafael."

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to amending item 18 of his DD Form 214 or upgrade of his discharge.  





      _________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)                                         AR20110001261





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ABCMR Record of Proceedings (cont)                                         AR20110001261



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