IN THE CASE OF:	  

		BOARD DATE:	        07 APRIL 2009

		DOCKET NUMBER:  AR20080019195 


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, that his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to show that his last name is spelled "-ae--" instead of "-ea--."

2.  The applicant states that his last name is incorrectly spelled on his DD Form 214.

3.  The applicant provides his DD Form 214 in support of this 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.  The preponderance of the applicant's military records, including his record of induction, DA Form 41 (Record of Emergency Data), and DA Form 20 (Enlisted Qualification Record) correctly show the applicant's last name is spelled "-ae--."  His DD Form 214, DA Form 1811 (Physical and Mental Status on Release from Active Service), and DA Form 2376 (Notification to State Adjutants General - Release from Active Duty of Obligated Reservist) that were completed in conjunction with his release from active duty on 21 October 1969 incorrectly spelled his last name "-ea--." 

3.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR 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 contends that his DD Form 214 should be corrected to show that his last name is spelled "-ae--" instead of "ea--." 

2.  It is clear that the applicant's last name was misspelled on several documents prepared at the time of his release from active duty, with the most important being his DD Form 214.  While the DA Form 1811 and DA Form 2376 prepared at the time also contain an incorrect spelling of his last name, these documents are effectively no longer relevant.  However, it would be appropriate at this time to correct the applicant's DD Form 214 to show that his last name is spelled
"ae--" instead of "ea--."  

BOARD VOTE:

___X_____  __X______  ___X_____  GRANT FULL RELIEF 

________  ________  ________  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 relief.  As a result, the Board recommends that the applicant's record be corrected by deleting from item 1 (Last Name, First Name, Middle Name) of the applicant's DD Form 214 the last name of "-ea--" and replacing it with his correct name of "-ae--."  

2.  The Board wants to thank the applicant for the sacrifices he made in service to the United States during the Vietnam War.  The applicant and all Americans should be justifiably proud of his honorable service in arms.



      ________XXX________________
               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)                                         AR20080019195



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ABCMR Record of Proceedings (cont)                                         AR20080019195



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