RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	31 July 2007  
	DOCKET NUMBER:  AR20070001690 


	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.  


Ms. Catherine C. Mitrano

Director

Ms. Stephanie Thompkins

Analyst


The following members, a quorum, were present:


Ms. Jeanette R. McCants 

Chairperson

Mr. Thomas M. Ray

Member

Mr. Jeffrey C. Redmann

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, changing his last name and his service entry date on his last DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states, in effect, that his last name was changed due to a court order on 20 October 1994 and he believes his service entry date should be 3 September 1970.  He did send one copy of the court order for his name change to the Department of the Army and the Veterans Administrative (VA), but the VA office still has not made the correction for his name change.  He also states that he was in the Delayed Entry Program (DEP) for 3 months before 3 September 1970.  He can not remember the exact date but his military records should have all the information.  His last DD Form 214 shows that his service entry date is wrong and the Board should get the information from the Army retiree record section.  His basic Army service date should be 3 September 1970 to 1 October 1994.

3.  The applicant provides a copy of his court “Order Changing Name” in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 30 September 1994, the date of his release from active duty for the purpose of retirement.  The application submitted in this case is dated 23 January 2007.

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 show that he enlisted in the United States Army Reserve (USAR) DEP, in pay grade E-1, on 21 July 1970, for 6 years.  He enlisted in the Regular Army on 3 September 1970 and continued to serve through several reenlistments until 30 September 1994, when he was released from active duty for the purpose of retirement.  He was transferred to the USAR Control Group (Retired Reserve).

4.  The applicant's DD Form 214, Item 1 (Name (Last, First, Middle) shows the last name he enlisted and served under throughout his military service.  Item 12a (Date Entered Active Duty This Period) shows 12 September 1978.  He was credited with 16 years and 19 days net active service this period.  Item 12d (Total Prior Inactive Service) shows he was credited with 1 month and 12 days total prior inactive service.  Item 18 (Remarks) lists the date of his reenlistments beginning with 12 September 1978 and continuing through 27 September 1991.

5.  There is no evidence in the applicant's service personnel records to show he applied for a legal name change of his last name while he served on active duty. The applicant provides a copy of an Order Changing Name court order, dated 20 October 1994, issued by District Court Number One, Pierce County, State of Washington, showing his last name was changed on that date, 20 days after he was released from the Army for the purpose of retirement.

6.  The applicant's records contain a DD Form 1343 (Notification of Change in Service Member's Official Records), dated 25 April 2003, that shows his last name was changed; however, this form contains incorrect information in Items 10 through 19.  

7.  Army Regulation 635-5, in effect at the time, governed the preparation of the DD Form 214.  It states, in pertinent part, that the DD Form 214 will be prepared for all personnel at the time of their retirement, discharge, or release from active duty.  The date the Soldier entered active duty status will be entered [his current enlistment will be entered] in Item 12a.  The last date of active duty will be entered in Item 12b.  

8.  Army Regulation 635-5, in effect at the time, also specified that a DD Form 214 will not be prepared for enlisted members discharged for immediate reenlistment in the Regular Army.  The regulation further specified that the DEP time beginning before 1 January 1985 would be entered in Item 12e.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s records are correct and need not be changed.  In his case, the records reflect the correct last name used at the time of his enlistment and throughout his military service.  

2.  In the absence of evidence showing error or injustice, it has been determined the applicant’s DD Form 214 is correct and is not in need of correction.

3.  For historical purposes, the Army has an interest in maintaining the accuracy of its records.  The data contained in those records should reflect the conditions and circumstances that existed at the time the records were created.

4.  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.  However, a DD Form 1343 was completed to show his surname was changed and filed with his official military records, although the completed form contains errors.

5.  The VA is a separate Government agency which acts independent of the Army.  Actions accomplished by the Army are of no force or effect within the VA. The applicant should contact the VA concerning having his name changed in his VA records.

6.  In view of the circumstances in this case, the applicant is not entitled to correction to Item 12a of his DD Form 214.  The applicant has provided no evidence to support his contention that the date in Item 12a is incorrect and should reflect another date.  

7.  The evidence shows the applicant enlisted in the DEP on 21 July 1970.  His first enlistment in the Regular Army was on 3 September 1970.  In accordance with pertinent regulations a DD Form 214 was not prepared to cover his period of reenlistments [from 3 September 1970 to 24 August 1972].  He was provided a DD Form 214 to cover his period of service from 25 August 1972 to 11 September 1978.  He was properly provided a DD Form 214 covering his period for service from his last reenlistment on 12 September 1978 through his release from active duty on 30 September 1994 for retirement.  Therefore, his reenlistment date of 12 September 1978 is properly shown in Item 12a. 

8.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 30 September 1994, the date of his release from the Army of the United States; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 29 September 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.

9.  In view of the foregoing, there is no basis for granting the applicant's request.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JM____  __JCR__  _TMR___  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 by changing his surname and active duty service entry date on his DD Form 214.

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.




_____Jeanette R. McCants___
          CHAIRPERSON




INDEX

CASE ID
AR20070001690
SUFFIX

RECON

DATE BOARDED
20070731
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19940930
DISCHARGE AUTHORITY
AR635-200, Chapter 12
DISCHARGE REASON
Retirement
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
100.01
2.
100.02
3.

4.

5.

6.