RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          18 October 2005
      DOCKET NUMBER:  AR20050002281


      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. Wanda L. Waller               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Ms. Linda Simmons                 |     |Member               |
|     |Mr. Kenneth Lapin                 |     |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, as the wife and legal representative of a former service
member (FSM), requests that her husband’s WD AGO Form 53-55 (Enlisted
Record and Report of Separation) be corrected to show his last name is
Bender instead of Bendor.

2.  The applicant states the FSM’s military records are incorrect.  She
contends that the FSM has Alzheimer disease and she needs his records
corrected to receive his benefits.

3.  The applicant provides a copy of the FSM’s WD AGO Form 53-55; his birth
certificate; and a Power of Attorney.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 14 October 1945.  The application submitted in this case is
dated 3 February 2005.

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.  The FSM’s military records are not available to the Board for review.
A fire destroyed approximately 18 million service members’ records at the
National Personnel Records Center in 1973.  It is believed that the FSM’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 FSM enlisted on 23 January 1942.  He served in the European Theater
of Operations and was honorably discharged on 14 October 1945.

5.  Item 1 (Last Name – First Name – Middle Initial) on the FSM’s WD AGO
Form 53-55 shows his last name is Bendor.

6.  The available service medical records show the FSM’s last name is
Bendor and Bender.
7.  On 12 December 1994, the FSM appointed the applicant his general power
of attorney.

8.  In support of her claim, the applicant provided a copy of the FSM’S
birth certificate which shows his father’s last name was Bender.

9.  Army Regulation 635-5 prescribes the separation documents prepared for
Soldiers upon retirement, discharge, or release from active military
service or control of the Army.  It establishes standardized policy for the
preparation of the DD Form 214.  In pertinent part it states that the DD
Form 214 is a synopsis of the Soldier's most recent period of continuous
active duty.  It provides a brief, clear-cut record of active Army service
at the time of release from active duty, retirement or discharge.

DISCUSSION AND CONCLUSIONS:

1.  For historical purposes, the Army has an interest in maintaining the
accuracy of its records.  The data and information contained in those
records should actually reflect the conditions and circumstances that
existed at the time the records were created.  In the absence of a showing
of material error or injustice, this Board is reluctant to recommend that
those records be changed.

2.  Although the birth certificate provided by the applicant shows the
FSM’s father’s last name was Bender, the few records available show he
served under both.  The primary spelling of the name he used cannot be
determined.  While the Board understands the applicant's desire to have the
records changed, it finds no basis for compromising the integrity of the
Army's records, in particular, the FSM's WD AGO Form 53-55.  This Board
action will be filed in his military records so a record of the FSM’s birth
last name will be on hand.

3.  Records show the applicant should have discovered the alleged error now
under consideration on 12 December 1994, the date she was appointed general
power of attorney; therefore, the time for the applicant to file a request
for correction of any error expired on 11 December 1997.  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 RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

JS______  LS_____  KL______  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.




            __John Slone__________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050002281                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051018                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |100.0100                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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