RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        14 DECEMBER 2004
      DOCKET NUMBER:  AR2004105541


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Ms. Jennifer Prater               |     |Chairperson          |
|     |Mr. Lester Echols                 |     |Member               |
|     |Ms. Diane Armstrong               |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his military records be corrected to show
his last name is “Darby” vice “Seely.”

2.  The applicant makes no statement but provides a copy of his adoption
papers in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 10 November 1968.  The application submitted in this case
is dated
2 March 2004.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  Records available to the Board indicate that the applicant entered
active duty on 6 January 1966 and served until 10 November 1968 when he was
released from active duty.  The applicant’s records show that he enlisted
under the last name of “Seely” and served his entire active duty service
under that name.

4.  Documents provided by the applicant indicate that in January 1969,
after he had already been released from active duty, his stepfather adopted
him and his name was legally changed from “Seely” to “Darby.”

5.  Although the applicant’s request to the Board suggests that he was a
member of the United States Army Reserve until 1972, which would have
coincided with the expiration of his 6 year statutory service obligation,
there were no documents in records available to the Board concerning any
military documents after his 1968 release from active duty.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant entered active duty and served
his entire enlistment utilizing the last name “Seely” and that his name was
not legally changed to “Darby” until after his separation from active duty.
2.  It is noted that the Army has an obligation, for historical purposes,
to maintain records as they were constituted at the time of creation.  The
fact that the applicant was adopted after his military service ended and
that his legal last name is now “Darby” is insufficient to justify changing
his military records, as they were originally constituted.  However, the
applicant should be aware that a copy of these proceedings will be included
in his Official Military Personnel File to show that he now uses the last
name of “Darby” vice “Seely.”

3.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 10 November 1968; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
9 November 1971.  However, the applicant did not file within the 3-year
statute of limitations and has not provided a compelling explanation or
evidence to show that it would be in the interest of justice to excuse
failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JP____  __LE  ___  ___DA __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's




failure to timely file this application within the 3-year statute of
limitations prescribed by law.  Therefore, there is insufficient basis to
waive the statute of limitations for timely filing or for correction of the
records of the individual concerned.




                                  _____ Jennifer Prater_________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004105541                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20041214                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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