RECORD OF PROCEEDINGS


	IN THE CASE OF:  
	

	BOARD DATE:           16 August 2005                   
	DOCKET NUMBER:  AR20050000950


	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. Yvonne Foskey

Analyst

The following members, a quorum, were present:


Mr. Melvin H. Meyer

Chairperson

Mr. John T. Meixell

Member

Mr. James B. Gunlicks

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, in effect, that the last name recorded in his military records be changed.

2.  The applicant states, in effect, the last name recorded in his military records is incorrect.  He claims in 1946, he sent a request to Washington for correction of his last name, but this effort was unsuccessful.  He also claims he was told his family documents would have to be corrected in proper order for correction to be made to his military records.  The applicant further states that he now needs his records corrected in order to apply for veterans benefits.

3.  The applicant provides a copy of his Birth Certificate in support of his application.  

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an alleged error or injustice that occurred on 25 October 1944.  The application submitted in this case is dated 
20 December 2000.  

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 limitations 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.  The applicant’s military records are not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the NPRC in 1973.  It is believed that the applicant’s records were lost or destroyed in that fire. However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case

4.  The available evidence includes a Report of Physical Examination and Induction (WD AGO Form 38), which was prepared on the applicant during his induction processing.  This document shows he entered active duty on 3 August 1944, under the last name he now claims is incorrect.  The applicant authenticated this document with his signature using the last name he now contends is not his real name. 
5.  The available records includes a copy of the applicant's Report of Proceedings of Board of Officers and associated documents (separation packet), which all list the last name he now claims is in error.

6.  The applicant's Report of Physical Examination of Enlisted Personnel Prior to Discharge, Release From Active Duty (WD AGO Form 38), which was prepared on the applicant during his separation processing also lists the last name he now claims is in error.  

7.  The applicant's Army Separation Qualification Record (WD AGO Form 100), which also was prepared on him during his separation processing also lists the last name he now claims is incorrect.  

8.  The Military Service Certificate issued to the applicant on 17 March 1987, also indicates the applicant served on active duty in the Regular Army from 3 August 1944 through 25 October 1944, and that he served under the last name he now claims is in error.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to have the name recorded in his military records changed to his birth name is understood.  However, there is no evidence that suggests the name recorded in his military record exhibits a material error or injustice.  

2.  The applicant enlisted, served, and was honorably separated from the Army under the name shown in his military records.  The Army has an interest in maintaining the accuracy of its records.  The data and information contained in those records should reflect the conditions and circumstances that existed at the time the records were created.  While the applicant’s desire to have the records changed to reflect his birth last name is understood, it would not be appropriate to compromise the integrity of the Army’s records at this late date.  

3.  A copy of this decisional document, along with his application, which confirms his birth name, will be filed in the applicant’s Official Military Personnel File (OMPF).  This should serve to clarify any questions or confusion regarding the different last names, and adequately document his birth name in his record for the purpose of entitlement to veterans benefits.  


4.  Records show the applicant should have discovered the alleged error or injustice related to his last name now under consideration on 25 October 1944.  Therefore, based on the date the Board was established, 2 January 1947, the time for him to file a request for correction of any error or injustice expired on 
1 January 1950.  However, he failed to 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 file.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___MHM_  ___JTM_  ___JBG__  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.




		____Melvin H. Meyer______
		        CHAIRPERSON



INDEX

CASE ID
AR20050000950
SUFFIX

RECON

DATE BOARDED
2005-08-16
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
1944/10/25
DISCHARGE AUTHORITY
AR615-369 . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Chun
ISSUES         1.
100
2.

3.

4.

5.

6.