IN THE CASE OF:	  

		BOARD DATE:	        28 August 2008

		DOCKET NUMBER:  AR20080005995 


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 (Armed Forces of the United States Report of Transfer or Discharge), dated 24 November 1969, as follows:

   a.  change his name from “Ruxxn Rixxxa” to “Roxxxxo Rixxxa-Vxxa”; 

	b.  change his date of birth (DOB) from “20 October 1949” to “29 July 1947”; and

	c.  change his place of birth from “Cumay, Puerto Rico” to “Arecibo, Puerto Rico.”

2.  The applicant states that when his mother registered him in the New York City public school system, she made a mistake with his name and date of birth, possibly due to language barrier.  He further adds that he has his high school records from 1964 indicating that his mother was the one who enrolled him.  As a result, his subsequent records contained the incorrect data.  He was able to correct his driver’s license, social security card, and passport.  He now requests his military records corrected. 

3.  The applicant provides additional documentary evidence, through counsel, in support of his application. 



COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant’s military records to show his correct name, date of birth, and place of birth.

2.  Counsel states that the applicant was born in Puerto Rico on 29 July 1947 and was registered as “Ruxxn Rixxxa-Vxxa.”  However, when his family moved to New York, NY in the early 1960s, his mother registered him at school under the name “Ruxxn Rixxxa” with a DOB of 20 October 1949.  It is unclear if this was due to a clerical error or a language barrier.  The applicant lived all his life using the name “Ruxxn Rixxxa” at school, in the Army, and the New York Transit.  Now that he is near retirement, he wishes to correct his records to avoid having problems with his retired pay.  He was able to correct his Pennsylvania Drivers License and Social Security Card.  

3.  Counsel provides the following additional documentary evidence in support of the applicant’s request:

   a.  DD Form 214, dated 24 November 1969.

   b.  Supplemental Worksheet for a United States Passport.

   c.  Copy of the applicant Certificate of Baptism, issued on 12 August 2003.

   d.  Copies of his mothers Certificate of Birth Registration, Certificate of Death, and Health Insurance Card.

   e.  Copy of the applicant’s fathers Driver’s License.
   
   f.  Copy of Seward Park High School, New York, New York (NY) statement, dated 20 April 2004, showing the applicant was discharged from high school on 30 April 1969.
   
   g.  Copy of the applicant’s Scholastic Transfer Record, dated 20 April 2000 (or 2006).  

	h.  Copies of the applicant’s NY State Drivers License, Pennsylvania (PA) Commercial Drivers License, Pennsylvania Certificate of Voter Registration, and old and new Social Security Cards.

	i.  Sworn Affidavit, dated 29 February 2008, and a copy of the applicant’s sister’s Identification Card.

	j.  Sworn Affidavit, dated 27 February 2008, and a copy of the applicant’s uncle’s driver’s license.    

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 records show he was inducted into the Army of the United States in New York City, NY, on 17 July 1969.  Item 1 (Last Name, First Name, Middle Name), of the applicant’s DD Form 47 (Record of Induction), shows his name as “Ruxxn Rixxxa.”  Item 5 (Date of Birth) shows the entry “20 October 1949” and Item 11 (Place of Birth), shows the entry “Cumay, Puerto Rico.

3.  Item 1 (Last Name, First Name, Middle Name) of the applicant’s DA Form 428 (Application for Identification Card), dated 22 July 1969, shows the applicant’s name as “Ruxxn Rixxxa.”  Furthermore, Item 10 (Date of Birth) shows the entry “20 Oct 49.”  The applicant authenticated this form by placing his signature in the “Signature of Applicant” block, using his name as “Ruxxn Rixxxa.” 

4.  On 22 July 1969, the applicant placed his fingerprints on a DD Form 369 (Police Record Check), as part of verification of his eligibility for military service.  His name is shown as “Ruxxn Rixxxa,” his DOB is shown as “20 Oct 49,” and his place of birth is shown as “Cumay, Puerto Rico.”  Again, the applicant authenticated this form by placing his signature in the “Signature of Person Being Fingerprinted” block, using his name as “Ruxxn Rixxxa.”  

5.  On 24 July 1969, the applicant completed a DD Form 398 (Statement of Personal History).  He placed the name “Ruxxn Rixxxa” in Item 1 (First Name, Middle Name, Last Name), and placed the entries “20 October 1949” and “Camuy, PR” in Item in Item 5 (Date/Place of Birth).  He authenticated this form by placing his signature in Item 20 (Signature of Person Completing This Form) using his name as “Ruxxn Rixxxa.”  

6.  On 24 July 1969, the applicant also completed his Servicemen’s Group Life Insurance Election and Record of Emergency Data forms.  He authenticated both forms using his name as “Ruxxn Rixxxa.”  

7.  Item 1 (Name) of the applicant’s undated DA Form 20 (Enlisted Qualification Record), which was created upon the applicant’s enlistment, shows the entry “Rixxxa Ruxxn” and Item 6 (Date of Birth) shows the entry “20 OCT 49.”  Again, the applicant authenticated this form using his name as “Ruxxn Rixxxa.”  

8.  The applicant’s records show he completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  He was honorably discharged for hardship on 24 November 1969.  

9.  Item 1 (Last Name, First Name, Middle Name) of the applicant’s DD Form 214 shows the entry “Rixxxa Ruxxn.”  Furthermore, Item 8 (Place of Birth) shows the entry “Cumay, Puerto Rico” and Item 9 (Date of Birth) shows the entry        “20 Oct 49.”  The applicant authenticated this form by placing his signature in Item 31 (Signature of Person Being Transferred or Discharged) using his name “Ruxxn Rixxxa.” 
  
10.  The applicant provided several supporting documents to show his correct name as ““Roxxxxo Rixxxa-Vxxa,” his correct DOB as “29 July 1947,” and his correct place of birth as “Arecibo, Puerto Rico.    

11.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the Official Military Personnel File (OMPF), the Military Personnel Records Jacket, the Career Management Individual File, and Army Personnel Qualification Records.  Chapter 2 of this regulation states an OMPF is initiated when the Soldier becomes a member of any Army Component.  It further states that once a document is placed in the Official Military Personnel File it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file.

12.  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.  In 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.  The applicant requests that his DD Form 214, dated 24 November 1969, be corrected to show his correct name as “Roxxxxo Rxxxxa-Vxxa,” his DOB as      “29 July 1947,” and place of birth as “Arecibo, Puerto Rico.”

2.  The evidence of record shows that the applicant was born on 20 October 1949 in Cumay, Puerto Rico, and enlisted in the Regular Army using his name as “Ruxxn Rixxxa.”  His name, DOB, and place of birth are consistent with the name, DOB, and place of birth on several documents in his service record throughout his entire military service.   The applicant authenticated several documents by placing his signature in the appropriate block, indicating the date on each form was correct.  He did not use the requested name, DOB, or place of birth during his military service.

3.  The Army has an interest in maintaining the accuracy of its records for historical purposes.  The information in those records must reflect the conditions and circumstances that existed at the time the records were created.  In the absence of compelling information to the contrary, there is no basis for changing the applicant’s last name in this case.  

4.  A copy of this decisional document, along with the applicant’s application will be filed in his Official Military Personnel File (OMPF).  This should serve to clarify any questions or confusion regarding the different names, dates of birth, and places of birth, and adequately document his last name, date of birth, and place of birth in his record. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.



															XXX
      _______ _   _______   ___
               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)                                         AR20080005995



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ABCMR Record of Proceedings (cont)                                         AR20080005995



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