IN THE CASE OF:	  

	BOARD DATE:	  

	DOCKET NUMBER:  AR20080003161 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his rank and pay grade as specialist four (SP4), E-4.  He also requests, in effect, that his last name be changed to show his current legal name.

2.  The applicant states that pay grade E-2 was placed on his DD Form 214 even though he was an E-3 at the time of his expiration of term of service (ETS) in 1983.  He alleges that he was an E-4 when he completed his Reserve obligation in 1986.  He had a legal name change while in the Reserves.  

3.  The applicant provides a supplemental letter, dated 28 January 2008; a letter from the Office of the Adjutant General, dated 24 August 1984; his DD Form 215 (Correction to DD Form 214), dated 27 June 1984; a certificate from the Office of the Adjutant General, dated 14 June 1984; a Judgment of Adoption; his Honorable Discharge Certificate, dated 19 February 1986; and his DD Form 214.

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 applicant’s complete military records are not available to the Board.  However, there were sufficient documents for the Board to conduct a fair and impartial review of this case.  

3.  On 25 January 1980, the applicant completed a DD Form 1584 (National Agency Check Request) which shows his last name as W_____.

4.  The applicant enlisted in the Regular Army on 20 February 1980.  At the completion of one station unit training (OSUT) at Fort Benning, Georgia, he was awarded military occupational specialty 11B (infantryman).  He was advanced to private, E-2 on 1 September 1980.  

5.  His DA Form 2-1 (Personnel Qualification Record - Part II) shows his last name as W_____.

6.  Item 27 (Remarks) on his DA Form 2-1 shows he was barred from reenlistment on 18 November 1980.  The bar to reenlistment was reviewed in August 1981, but it was not recommended for removal.

7.  His DA Form 2-1 shows he was advanced to private first class (PFC) on 1 February 1982.

8.  The applicant’s bar to reenlistment was reviewed in March 1982, but it was not recommended for removal.

9.  A DA Form 2496 (Disposition Form), dated 13 May 1982, in the applicant’s service personnel records, recommends removal of his bar to reenlistment and his rank is shown as PFC.  

10.  All of the documents in the applicant’s service personnel records show his last name as W_____.

11.  The applicant was honorably released from active duty on 19 February 1983 at his ETS.  On the following date, he was transferred to the U.S. Army Reserve Control Group (Reinforcement).

12.  Item 4a (Grade, Rate or Rank) and item 4b (Pay Grade) on the applicant’s DD Form 214 shows his rank and pay grade as “PV2” and “E2.”  His effective date of pay grade is shown as 1 September 1980.

13.  Item 1 (Name (Last, first, middle)) on his DD Form 214 shows his last name as W_____.

14.  A DD Form 215, dated 27 June 1984, amended the applicant’s DD Form 214 to show his rank and pay grade as PFC, E-3, with an effective date of pay grade as 1 February 1982.  His Reenlistment (RE) code was changed to RE-1.

15.  Department of the Army, U.S. Army Reserve Personnel Center, St. Louis, Missouri Orders D-02-012346, dated 18 February 1986, discharged the applicant from the Ready Reserve effective 19 February 1986 in the rank of SP4.  These orders show his last name as W_____.

16.  His Honorable Discharge Certificate, dated 19 February 1986, shows his rank as “SP4.”

17.  The applicant provided a Judgment of Adoption which shows his last name was changed from W_____to L_____ on 6 October 1988.

18.  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.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  In pertinent part, it directed that the grade in which enlisted personnel were serving at the time of separation would be entered in item 4a and the pay grade will be entered in item 4b.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was advanced to PFC, E-3 on 1 February 1982.  

2.  There is no evidence which indicates the applicant was promoted to SP4, E-4 prior to his ETS on 19 February 1983.

3.  Based on Army Regulation 635-5, the grade in which enlisted personnel served at the time of separation will be shown on the DD Form 214.  His DD Form 214 was amended on 27 June 1984 to properly reflect that he held the rank of PFC, E-3 on 19 February 1983, the date he was separated from active duty.  Therefore, his DD Form 214 accurately reflects his rank and pay grade as PFC, E-3.

4.  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, those records should not be changed.

5.  Although the applicant appears to be currently using the last name, L_____, he served on and was released from active duty under the last name W_____.  While the applicant's desire to have the records changed is understandable, there is no basis for compromising the integrity of the Army's records.  This Board action will be filed in his military records so a record of the name he is currently using will be on hand.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




 _   _______  X ______________
       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)                                         AR20080003161



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ABCMR Record of Proceedings (cont)                                         AR20080003161



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